A5137

An Act concerning competency evaluations of criminal defendants, amending N.J.S.2C:4-5, supplementing Title 2C of the New Jersey Statutes, and making an appropriation.

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, or if the defendant is charged with a crime of the first or second degree, appoint at least two qualified psychiatrists or licensed psychologists, 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] the State-funded roster established pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), which may include personnel from the Department of Human Services; or

(2) Agreed to by the court, prosecutor and defendant.

[Alternatively, the court may order examination of a defendant for fitness to proceed by the Department of Human Services. The] If an evaluation is to be performed by personnel from the Department of Human Services, the department shall provide or arrange for examination of the defendant at a jail, prison or psychiatric hospital. However, to ensure that a defendant is not unnecessarily hospitalized for the purpose of the examination, a defendant shall not be admitted to a State psychiatric hospital for an examination regarding his fitness to proceed unless a qualified psychiatrist or licensed psychologist designated by the commissioner, who shall be different from the professional performing the examination, determines that hospitalization is clinically necessary to perform the examination. Whenever the qualified psychiatrist or licensed psychologist determines that hospitalization is clinically necessary to perform the examination, the court shall order the defendant to be committed to the custody of the Commissioner of Human Services for placement in a State psychiatric hospital designated for that purpose for a period not exceeding 30 days.

Nothing in this section shall be construed to limit or impair the ability of the defendant or the prosecutor to retain their own respective psychiatrist or psychologist at their own respective expense. A qualified psychiatrist or licensed psychologist retained by the defendant or by the prosecutor shall, if requested, be permitted to examine a defendant who has been admitted to a State psychiatric hospital.

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 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 or licensed psychologist.

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.1998, c.111, s.1)

2. (New section) a. There is created a program to be known as the “Court-Appointed Criminal Defendant Competency Evaluation Roster Program” which shall be administered by the Administrative Director of the Courts. The purpose of the program shall be to establish a State-funded roster of qualified psychiatrists or licensed psychologists in this State who are willing and able to accept appointments by the court as needed to perform evaluations concerning the competency of criminal defendants to stand trial pursuant to N.J.S.2C:4-5 and N.J.S.2C:4-6. Inclusion in the roster shall be voluntary, except that the Commissioner of Human Services may assign such qualified personnel from the Department of Human Services as may be necessary to effectuate the purpose of the program.

b. The Administrative Director of the Courts shall:

(1) publicize the existence of the program; solicit voluntary participation in the program among the psychiatry and psychology professions; and provide roster lists to judges, court staff, prosecutors, criminal defense attorneys, and the public;

(2) adopt rules for participation in the program by psychiatrists and psychologists, including standards of ethical and professional practice consistent with those standards applicable to court-appointed experts, procedures to screen for conflicts of interest, standardized retainer agreements, and arrangements for the prompt payment of participants from available State appropriations;

(3) establish criteria for inclusion in the program roster, including requirements concerning professional qualifications and experience;

(4) select and approve qualified psychiatrists and licensed psychologists for inclusion in the roster;

(5) establish a reasonable fee schedule for roster participation based upon available State appropriations, and prepare and submit an annual program budget;

(6) report annually to the Legislature and the Chief Justice of the Supreme Court on the activities of the program and make recommendations as appropriate; and

(7) perform any other tasks necessary and proper to implement the program, subject to the approval of the Chief Justice of the Supreme Court.

c. In implementing the provisions of subsection b. of this section, the Administrative Director of the Courts shall consult with the Public Defender, the Attorney General, the Commissioner of Human Services, the State Board of Medical Examiners, the State Board of Psychological Examiners, and any other knowledgeable persons or organizations as the director deems appropriate.

d. Any court having jurisdiction over a criminal or juvenile delinquency matter may appoint a psychiatrist or psychologist from the roster to perform a competency evaluation pursuant to N.J.S.2C:4-5 and N.J.S.2C:4-6.

e. There is appropriated annually from the General Fund to the Judiciary such funds as shall be necessary for the implementation of this section, as certified by the Administrative Director of the Courts and subject to the approval of the Director of the Division of Budget and Accounting in the Department of the Treasury.

3. This act shall take effect on the first day of the third month next following enactment except that the Administrative Director of the Courts and the Commissioner of Human Services may take such anticipatory action as may be necessary for the timely implementation of this act.

STATEMENT

This bill establishes the “Court-Appointed Criminal Defendant Competency Evaluation Roster Program” in the Judiciary. The purpose of the program is to establish a State-funded roster of qualified psychiatrists or licensed psychologists who are willing and able to accept appointments by the court, as needed, to perform evaluations concerning the competency of criminal defendants to stand trial pursuant to N.J.S.2C:4-5 and N.J.S.2C:4-6. Inclusion in the roster will be voluntary, but may include qualified personnel assigned from the Department of Human Services.

Under N.J.S.2C:4-5, whenever there is reason to doubt a defendant’s mental fitness to proceed in a criminal case, the court, the prosecutor, or defense counsel may request the appointment of a qualified psychiatrist or licensed psychologist to conduct a competency evaluation. Currently, the professional conducting the evaluation may be drawn from a roster agreed to by the court, the prosecutor, and the defendant, or the court may request that the evaluation be performed by personnel from the Department of Human Services. If a referral is made to the Department of Human Services, the defendant may be committed to a State psychiatric hospital for up to 30 days upon a determination by the Department of Human Services that hospitalization is clinically necessary to perform the competency evaluation.

Under the bill, the court will be able to appoint a professional from a pre-selected standing roster, whose services will be paid for by the State. The bill amends N.J.S.2C:4-5 to require at least two competency evaluations if the defendant is charged with a crime of the first or second degree. Concerning psychiatric hospitalization, the bill requires that the professional determining clinical necessity be different from the professional actually conducting the competency evaluation. The bill also provides that the appointment of a professional from the State-funded roster does not preclude the prosecutor or the defendant from retaining their own professional at their own expense.

The bill provides that the Administrative Director of the Courts will oversee the “Court-Appointed Criminal Defendant Competency Evaluation Roster Program,” and consult with the Public Defender, the Attorney General, the Commissioner of Human Services, the State Board of Medical Examiners, the State Board of Psychological Examiners, and other knowledgeable persons to develop program rules, roster selection criteria, payment arrangements from State appropriations, and any other tasks necessary to implement the program. The bill provides for an annual program appropriation from the State’s General Fund.