At times during a criminal case in 5th Circuit Court, a prosecutor — or more often the defense attorney — will make a 704 motion. This is an examination to consider factors to determine if a defendant is fit to
At times during a criminal case in 5th Circuit Court, a prosecutor — or more often the defense attorney — will make a 704 motion.
This is an examination to consider factors to determine if a defendant is fit to proceed to trial. It is also used to exclude penal responsibility of a crime for reason of physical or mental disease, disorder or defect.
If the court rules the defendant unfit, a not guilty plea may follow for lacking capacity to understand their actions or laws. An order to place the defendant with the Department of Health for a review would follow.
In a misdemeanor offense, the court appoints one medical examiner to review medical and court records and to interview the defendant and determine fitness.
In a felony case, a three-panel of examiners is appointed. The court makes a determination based in part from the reports and other information with argument from the state and legal counsel.
Dr. Carol Tyler (Doctor of Psychology) is the acting chief of Forensic Service at Hawai‘i Department of Health. She oversees four full-time and four part-time state certified examiners.
There are three primary concerns for the examiners, Tyler said.
A defendant is mentally fit for trial if the examiners determine he can understand court proceedings, the role of the prosecutor and can communicate effectively with his defense attorney. If he can also comprehend basic procedures and options in the trial and plea bargain process, the report states he is fit to proceed, she said.
“The examiner is basically an expert that finds information and writes an evaluation to help judges make their opinion,” Tyler said. “The judge has the final say. We opine and the judge makes the determination.”
The process begins with the adult probation office gathering health and criminal records in the state and around the country if necessary. After reviewing the records, the examiner meets with the defendant in the jail, hospital or his office if he is not in custody.
Dr. Bill Shehan, psychiatric chief of Adult Mental Health at Hawai‘i Department of Health, said people often mistake the role of the examiner with that of the caregiver.
“It is a different profession and it inflects a different style and a different role,” Shehan said.
The examiner provides a report to the court, Shehan said. Examiners are not there to help the patient as part of the treatment team, and so there is no doctor-patient relationship or confidentiality and what is said will not be private, he added.
“What is different is that in a regular situation the person asks for help,” Shehan said. “In this situation the court is asking for help.”
This information is shared with the defendant from the beginning, Tyler said.
Each evaluation is conducted independently and without consultation from the other examiners, Shehan said. If there is disagreement among the opinions, then the judge reviews them all and can render an opinion or order another exam.
The defendant, or most often the family of the defendant, may ask the court to allow their own expert. This is allowed and the opinion is added to the state appointees.
Some criticisms voiced in court aims at the examiner making a diagnosis after a record review and a 50-minute interview of the defendant.
The examiner has an advantage with the amount of medical history available to them, said Dianne Gerard, a Lihu‘e psychologist who conducts fitness examinations for 5th Circuit Court. The treating physician often relies on self-reported information from the patient, she added.
“We usually have more access than if someone came into the office for psychotherapy,” said Gerard.
The industry standard for a treating physician to make a tentative diagnostic impression is about the same, she said. It is the same also for insurance and billing purposes, she added.
Gerald McKenna is a practicing psychiatrist on Kaua‘i. He is also a court examiner.
“There are obvious problems when we sit down with a person that we don’t know and we are doing an interview for forensic evaluation,” McKenna said. “The person needs to be told at the beginning that we are going to be submitting a report to the court.”
It helps to inform the defendant that the examiner is not making decisions regarding the defendant’s guilt or innocence, he said. The issues are compounded at times with a dual diagnosis of a major psychiatric disorder and an addictive disorder.
Other 704 motions have to do with supervised released of defendants once declared not-guilty of a crime. This often comes with strong objections from victims, families of victims and prosecutors.
Conditional release is another evaluation that includes hospital treatment input from the team that has works daily with the defendant.
The judge reviews reports on defendant progress, issues of dangerousness to self or others and the amount of support and ability to follow outpatient treatment programs.
“The big question is risk,” Tyler said. “Can this person return to the community without harming them self or others?”
Examiners are psychiatrists and psychologists with experience working in forensics, courts and corrections settings. For certification they provide sample reviews and evaluations with feedback from judges and other examiners.
The Department of Health is about to adopt standardized rules on the 704 process in September. Training guidelines are already in place, and Tyler describes them as a natural modification.
“There was always a process in place but it was not standardized,” she said.
It resulted in the first statewide training program in June, which McKenna said was helpful in getting all examiners to follow the same guidelines and formats.
“For the first time we have been told that we have the freedom to order specific testing for the clients,” he said. “I think this will be extremely helpful.”
Legal records don’t always provide information that is helpful for medical evaluators, he said.
This is big news, Shehan said. The statute was a long time coming and is a significant step toward consistency across the board.
“It is one-level up from where its been, and it doesn’t tell them what they must do, but how they do it,” he said. “It’s the process about how they go about doing what they do.”
A report to be released in September studies decades of 704 evaluations and court feedback, Tyler said. The data will help continue to improve the system.
The study was conducted by Dr. Neil Gowensmith, a former State of Hawai‘i forensics chief and professor at the University of Denver, along with Dr. Jennifer Skeem, a professor of psychology at the University of California at Irvine.
“We do the best that we can with the knowledge we have,” Tyler said. “It is not an exact science, and there is a lot of room for improvement.”
