§704-407 Special hearing following commitment or release on conditions. (1) At any time after commitment as provided in section 704-406, the defendant or the defendant's counsel or the director of health may apply for a special post-commitment or post-release hearing. If the application is made by or on behalf of a defendant not represented by counsel, the defendant shall be afforded a reasonable opportunity to obtain counsel, and if the defendant lacks funds to do so, counsel shall be assigned by the court. The application shall be granted only if the counsel for the defendant satisfies the court by affidavit or otherwise that, as an attorney, the counsel has reasonable grounds for a good faith belief that the counsel's client has an objection based upon legal grounds to the charge.

(2) If the motion for a special post-commitment or post-release hearing is granted, the hearing shall be by the court without a jury. No evidence shall be offered at the hearing by either party on the issue of physical or mental disease, disorder, or defect as a defense to, or in mitigation of, the offense charged.

(3) After the hearing, the court shall rule on any legal objection raised by the application and, in an appropriate case, may quash the indictment or other charge, find it to be defective or insufficient, or otherwise terminate the proceedings on the law. Unless all defects in the proceedings are promptly cured, the court shall terminate the commitment or release ordered under section 704-406 and:

(a) Order the defendant to be discharged;

(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or

(c) Subject to section 334-121 regarding assisted community treatment criteria, order the defendant to be released on conditions as the court deems necessary. [L 1972, c 9, pt of §1; am L 1980, c 222, §1(2); gen ch 1993; am L 2006, c 230, §8; am L 2016, c 231, §7]

COMMENTARY ON §704-407

This section affords the defendant and the defendant's counsel the opportunity, notwithstanding the defendant's unfitness to proceed, to make any objection to the prosecution which is susceptible of a fair determination without the personal participation of the defendant. It seems clear that this is an eminently sensible provision in view of the fact that it is the defendant's inability to participate in the defendant's defense (either because the defendant lacks capacity to either understand the proceedings or to assist in the defendant's own defense) that has rendered the defendant unfit to be proceeded against. If a valid objection to the continuance of the prosecution can be established without the participation of the defendant, there is no reason not to terminate it.

This section is an addition to the law. The concept was originally proposed by the Massachusetts Judicial Council[1] and adopted as an optional alternative by the Model Penal Code.2

SUPPLEMENTAL COMMENTARY ON §704-407

Act 222, Session Laws 1980, eliminated post-commitment release motions based upon factual grounds and limited such motions to those based upon legal grounds. The intent was to have all factual issues, including insanity, heard in one trial.

Act 230, Session Laws 2006, amended this section to, among other things, allow the court to order the release of the defendant on conditions, subject to the law governing involuntary outpatient treatment.

Act 231, Session Laws 2016, amended subsection (3) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

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§704-407 Commentary:

1. Massachusetts Judicial Council, Thirty-Sixth Report 22-24, 27-28 (1960).

2. M.P.C. §4.06. The other alternative is to limit post- commitment hearings to legal objections to the prosecution which are susceptible of a determination prior to trial.