Bill Text: MI HB5175 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Juveniles; criminal procedure; juvenile competency and culpability; clarify. Amends 1974 PA 258 (MCL 330.1001 - 330.2106) by adding secs. 1060, 1060a, 1060b, 1062, 1064, 1066, 1068 & 1070.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2010-06-09 - Referred To Second Reading [HB5175 Detail]
Download: Michigan-2009-HB5175-Introduced.html
HOUSE BILL No. 5175
July 14, 2009, Introduced by Reps. Schuitmaker and Segal and referred to the Committee on Judiciary.
A bill to amend 1974 PA 258, entitled
"Mental health code,"
(MCL 330.1001 to 330.2106) by adding sections 1060, 1060a, 1060b,
1062, 1064, 1066, 1068, and 1070.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CRIMINAL PROVISIONS REGARDING JUVENILES
Sec. 1060. For the purposes of sections 1060a to 1070, the
words and phrases defined in sections 1060a and 1060b have the
meanings ascribed to them in those sections.
Sec. 1060a. (1) "Competency evaluation" means a court-ordered
examination of a juvenile directed to developing information
relevant to a determination of his or her competency to proceed at
a particular stage of a court proceeding involving a juvenile who
is the subject of a delinquency petition.
(2) "Competency hearing" means a hearing to determine whether
a juvenile is competent to proceed.
(3) "Incompetent to proceed" means that a juvenile lacks a
reasonable degree of rational as well as factual understanding of
the proceeding, is unable to understand the nature or object of the
proceeding, and is unable to assist in his or her defense in a
meaningful way. A determination of juvenile incompetency must be
made in light of adolescent norms. Elements of juvenile
incompetency include, but are not limited to, mental or physical
disorder, mental retardation or developmental disability, cognitive
or intellectual deficit, immaturity, or other functional deficit.
(4) "Juvenile" means a person who is less than 17 years of age
who is the subject of a delinquency petition.
Sec. 1060b. (1) "Least restrictive environment" means a
supervised community placement, preferably a placement with the
juvenile's parent, guardian, relative, or a facility or conditions
of treatment that is a residential or institutional placement only
utilized as a last resort based on the best interest of the
juvenile or for reasons of public safety.
(2) "Licensed child caring institution" means that a child
caring institution as defined and licensed under 1973 PA 116, MCL
722.111 to 722.128.
(3) "Qualified examiner" means a mental health professional
who the court determines has the skills and training necessary to
conduct the competency evaluation. The skills necessary to conduct
the competency evaluation shall include, but are not limited to,
knowledge, skill, training, and experience in all of the following:
(a) The evaluation or treatment of children and adolescents
with serious emotional disturbance, mental illness, or
developmental disabilities.
(b) Clinical understanding of child development and adolescent
development.
(c) Forensic evaluation procedures for juveniles through
formal instruction, professional supervision, or both.
(d) Familiarity with competency standards in this state.
(4) "Restoration" means that a juvenile is no longer
incompetent to proceed.
(5) "Serious misdemeanor" means that term as defined in section
61 of the William Van Regenmorter crime victim's rights act, 1985 PA
87, MCL 780.811.
Sec. 1062. (1) A juvenile 10 years of age or older is presumed
competent to proceed unless the issue of competency is raised by a
party. A juvenile less than 10 years of age is presumed incompetent
to proceed.
(2) The court may order, or a juvenile, the juvenile's
attorney, or the prosecuting attorney may request, a competency
evaluation to determine whether the juvenile is incompetent to
proceed if the juvenile is being charged as a juvenile in the court.
The issue of the juvenile's competency may be raised by the court
before which the proceedings are pending or being held, or by motion
of a party, at any time during the proceeding.
(3) At the time an issue of the juvenile's competency is
raised, the delinquency proceeding shall temporarily cease until
determination is made on the competence of the juvenile according to
this act.
Sec. 1064. (1) A competency evaluation ordered under section
1062 shall be conducted by a qualified examiner. The qualified
examiner shall make a finding as to whether the juvenile is competent
to proceed. The court has the final determination as to who is a
qualified examiner.
(2) This section does not prohibit any party from retaining the
party's own qualified examiner to conduct additional evaluations at
the party's own expense.
(3) The competency evaluation shall be conducted in the least
restrictive environment. There is a presumption in favor of
conducting a competency evaluation while the juvenile remains in the
custody of a parent or legal guardian, unless removal from the home
is necessary for the best interests of the juvenile, for reasons of
public safety, or because the parent or guardian has refused to
cooperate in the competency evaluation process.
Sec. 1066. (1) The court shall order the prosecuting attorney
to provide to the juvenile's attorney all information related to
competency and shall order the prosecuting attorney and juvenile's
attorney to submit to the qualified examiner any information
considered relevant to the competency evaluation, including, but
not limited to:
(a) The names and addresses of all attorneys involved.
(b) Information about the alleged offense.
(c) Any information about the juvenile's background in the
prosecuting attorney's possession.
(2) The court shall require the juvenile's attorney to provide
any available records of the juvenile or other information relevant
to the evaluation, including, but not limited to, any of the
following:
(a) Psychiatric records.
(b) School records.
(c) Medical records.
(d) Child protective services records.
(3) All information required under subsections (1) and (2)
must be provided to the qualified examiner within 10 days after the
court issues the order for the competency evaluation. If possible,
the information required under this section shall be received
before the juvenile's competency evaluation or the commencement of
the competency evaluation in an outpatient setting.
(4) A qualified examiner who conducts a competency evaluation
shall submit a written report to the court not later than 30 days
from receipt of the court order requiring the competency
evaluation. The report shall contain, but not be limited to, the
following:
(a) A description of the nature, content, and extent of the
examination, including, but not limited to, all of the following:
(i) A description of assessment procedures, techniques, and
tests used.
(ii) Available medical, educational, and court records
reviewed.
(iii) Social, clinical, developmental, and legal history as
available.
(b) A clinical assessment that includes, but is not limited
to, the following:
(i) A mental status examination.
(ii) The diagnosis and functional impact of mental illness,
developmental disability, or cognitive deficiency. If the juvenile
is taking medication, the impact of the medication on the
juvenile's mental state and behavior.
(iii) An assessment of the juvenile's intelligence.
(iv) The juvenile's age, maturity level, developmental stage,
and decision-making abilities.
(v) Whether the juvenile has any other factor that affects
competence.
(c) A description of abilities and deficits in the following
mental competency functions related to the juvenile's competence to
proceed:
(i) The ability to factually as well as rationally understand
and appreciate the nature and object of the proceedings, including,
but not limited to, all of the following:
(A) An ability to understand the role of the participants in
the court process, including, the roles of judge, the juvenile's
attorney, the prosecuting attorney, the probation officer,
witnesses, and the jury, and to understand the adversarial nature
of the process.
(B) An ability to appreciate the charges and understand the
seriousness of the charges.
(C) An ability to understand and realistically appraise the
likely outcomes.
(D) An ability to extend thinking into the future.
(ii) The ability to render meaningful assistance to the
juvenile's attorney in the preparation of the case, including, but
not limited to, all of the following:
(A) An ability to disclose to an attorney a reasonably
coherent description of facts and events pertaining to the charge,
as perceived by the juvenile.
(B) An ability to consider the impact of his or her action on
others.
(C) Verbal articulation abilities or the ability to express
himself or herself in a reasonable and coherent manner.
(D) Logical decision-making abilities, particularly
multifactored problem-solving or the ability to take several
factors into consideration in making a decision.
(E) An ability to reason about available options by weighing
the consequences, including weighing pleas, waivers, and
strategies.
(F) An ability to display appropriate courtroom behavior.
(5) The qualified examiner shall provide the court with an
opinion about the juvenile's competency to proceed. If the
qualified examiner determines that the juvenile is incompetent to
proceed, the examiner will comment on the nature of mental disease
or defect, the prognosis, and the services needed to restore the
juvenile to competency, if possible, within a projected time frame.
The opinion shall include an assessment of whether the juvenile is
a threat to self or others and requires emergency intervention.
(6) The court in its discretion may, for good cause, grant the
qualified examiner a 30-day extension in filing the competency
evaluation report.
(7) Copies of the written report shall be provided by the court
to the juvenile's attorney, the prosecuting attorney, and any
guardian ad litem for the juvenile not later than 5 working days
after receipt of the report by the court.
Sec. 1068. (1) Not later than 30 days after a report is filed
under section 1066, the court shall hold a hearing to determine if a
juvenile is competent to proceed. At the hearing, the parties may
introduce other evidence regarding the juvenile's mental condition or
may submit the matter by written stipulation based on the filed
report.
(2) Upon a finding by the court that a juvenile is incompetent
to proceed or a finding that there is a substantial probability that
the juvenile will remain incompetent to proceed for the foreseeable
future or within the period of the restoration order, the court shall
dismiss the charges against the juvenile and may determine custody of
the juvenile.
(3) The qualified examiner appointed by the court to determine
the juvenile's mental condition shall be allowed reasonable fees for
services rendered. The court shall determine who shall pay the cost
of the competency evaluation ordered by the court.
Sec. 1070. (1) The constitutional protections against self-
incrimination apply to all competency evaluations.
(2) Any evidence or statement obtained during a competency
evaluation is not admissible in any proceeding to determine the
juvenile's guilt or innocence unless the juvenile presents evidence
that is intended to rebut the presumption of criminal
responsibility.
(3) A statement that a juvenile makes during a competency
evaluation or evidence resulting from the statement concerning any
other event or transaction is not admissible in any proceeding to
determine the juvenile's guilt or innocence of any other charges that
are based on those events or transactions.
(4) A statement that the juvenile makes during a competency
evaluation may not be used for any purpose without the written
consent of the juvenile or the juvenile's guardian. The juvenile or
the juvenile's guardian must have an opportunity to consult with
his or her attorney before giving consent.
(5) After the case proceeds to adjudication or the juvenile is
found to be unable to regain competence, the court shall order all
of the reports that are submitted according to sections 1062 to
1068 to be sealed. The court may order that the reports be opened
only as follows:
(a) For further competency or criminal responsibility
evaluations.
(b) For statistical analysis.
(c) If the records are considered to be necessary to assist in
mental health treatment ordered under this act.
(d) For data gathering.
(e) For scientific study or other legitimate research.
(6) If the court orders reports to be open for the purposes of
statistical analysis, data gathering, or scientific study according
to subsection (5), the reports shall remain confidential.
(7) Any statement that a juvenile makes during a competency
evaluation, or any evidence resulting from that statement, is not
subject to disclosure.
