THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY MANDERINO, BELFANTI, BENNINGHOFF, BEYER, BISHOP, BRIGGS, DiGIROLAMO, FABRIZIO, FLECK, FRANKEL, GINGRICH, GODSHALL, HORNAMAN, JOHNSON, JOSEPHS, KULA, MAHONEY, MUNDY, MURT, PRESTON, QUINN, SIPTROTH, M. SMITH, SOLOBAY, STEVENSON, R. TAYLOR, THOMAS, WAGNER, WATERS, YOUNGBLOOD, SANTONI AND MANN, MAY 11, 2010

REFERRED TO COMMITTEE ON JUDICIARY, MAY 11, 2010  

AN ACT

Amending the act of July 9, 1976 (P.L.817, No.143), entitled "An

act relating to mental health procedures; providing for the

treatment and rights of mentally disabled persons, for

voluntary and involuntary examination and treatment and for

determinations affecting those charged with crime or under

sentence," in criminal justice determinations, further

providing for incompetence and for procedure.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 402(e) and (f) of the act of July 9, 1976

(P.L.817, No.143), known as the Mental Health Procedures Act,

amended Nov. 26, 1978, (P.L.1362, No.324), are amended and the

section is amended by adding a subsection to read:

Section 402.  Incompetence to Proceed on Criminal Charges and

Lack of Criminal Responsibility as Defense.--* * *

(e)  Conduct of Examination; Report.--When ordered by the

court, an incompetency examination shall take place under the

following conditions:

(1)  It shall be conducted as an outpatient examination

unless an inpatient examination is, or has been, authorized

under another provision of this act.

(2)  It shall be conducted by at least one psychiatrist or

licensed psychologist and may relate both to competency to

proceed and to criminal responsibility for the crime charged.

(3)  The person shall be entitled to have counsel present

with him and shall not be required to answer any questions or to

perform tests unless he has moved for or agreed to the

examination. Nothing said or done by such person during the

examination may be used as evidence against him in any criminal

proceedings on any issue other than that of his mental

condition.

(4)  A report shall be submitted to the court and to counsel

and shall contain a description of the examination, which shall

include:

(i)  diagnosis of the person's mental condition;

(ii)  an opinion as to his capacity to understand the nature

and object of the criminal proceedings against him and to assist

in his defense;

(iii)  when so requested, an opinion as to his mental

condition in relation to the standards for criminal

responsibility as then provided by law if it appears that the

facts concerning his mental condition may also be relevant to

the question of legal responsibility; and

(iv)  when so requested, an opinion as to whether he had the

capacity to have a particular state of mind, where such state of

mind is a required element of the criminal charge.

(f)  Experts.--The court may allow a psychiatrist or licensed

psychologist retained by the defendant and a psychiatrist or

licensed psychologist retained by the Commonwealth to witness

and participate in the examination. Whenever a defendant who is

financially unable to retain such expert has a substantial

objection to the conclusions reached by the court-appointed

psychiatrist or licensed psychologist, the court shall allow

reasonable compensation for the employment of a psychiatrist or

licensed psychologist of his selection, which amount shall be

chargeable against the mental health and mental retardation

program of the locality. 

* * *

(h)  Definition.--As used in this section, the term "licensed

psychologist" means an individual licensed under the act of

March 23, 1972 (P.L.136, No.52), known as the "Professional

Psychologists Practice Act."

Section 2.  Section 404 of the act is amended to read:

Section 404.  Hearing and Determination of Criminal

Responsibility; Bifurcated Trial.--(a)  Criminal Responsibility

Determination by Court.--At a hearing under section 403 of this

act the court may, in its discretion, also hear evidence on

whether the person was criminally responsible for the commission

of the crime charged. It shall do so in accordance with the

rules governing the consideration and determination of the same

issue at criminal trial. If the person is found to have lacked

criminal responsibility, an acquittal shall be entered. If the

person is not so acquitted, he may raise the defense at such

time as he may be tried.

(b)  Opinion Evidence on Mental Condition.--At a hearing

under section 403 or upon trial, a psychiatrist or licensed

psychologist appointed by the court may be called as a witness

by the attorney for the Commonwealth or by the defendant and

each party may also summon any other psychiatrist or licensed

psychologist or other expert to testify.

(c)  Bifurcation of Issues or Trial.--Upon trial, the court,

in the interest of justice, may direct that the issue of

criminal responsibility be heard and determined separately from

the other issues in the case and, in a trial by jury, that the

issue of criminal responsibility be submitted to a separate

jury. Upon a request for bifurcation, the court shall consider

the substantiality of the defense of lack of responsibility and

its effect upon other defenses, and the probability of a fair

trial.

(d)  Definition.--As used in this section, the term "licensed

psychologist" means an individual licensed under the act of

March 23, 1972 (P.L.136, No.52), known as the "Professional

Psychologists Practice Act."

Section 3.  The amendment of sections 402 and 404 of the act

shall apply to actions initiated on or after the effective date

of this section.

Section 4.  This act shall take effect in 60 days.