{"data":{"id":"us-hi/haw.-rev.-stat.-704-411","jurisdiction":"us-hi","citation":"Haw. Rev. Stat. § 704-411","heading":"Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release;","body":"§704-411 Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release; discharge; procedure for separate post-acquittal hearing. ( 1) When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, shall order that:\n\n(a) The defendant shall be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant:\n\n(i) Is affected by a physical or mental disease, disorder, or defect;\n\n(ii) Presents a risk of danger to self or others; and\n\n(iii) Is not a proper subject for conditional release;\n\nprovided that the director of health shall place defendants charged with misdemeanors or felonies not involving violence or attempted violence in the least restrictive environment appropriate in light of the defendant's treatment needs and the need to prevent harm to the person confined and others. The county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853; provided that the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided further that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided. The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest. Records shall not be re-disclosed except to the extent permitted by law;\n\n(b) The defendant shall be granted conditional release with conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition; or\n\n(c) The defendant shall be discharged if the court finds that the defendant is no longer affected by physical or mental disease, disorder, or defect or, if so affected, that the defendant no longer presents a danger to self or others and is not in need of care, supervision, or treatment.\n\n(2) The court, upon its own motion or on the motion of the prosecuting attorney or the defendant, shall order a separate post-acquittal hearing for the purpose of taking evidence on the issue of physical or mental disease, disorder, or defect and the risk of danger that the defendant presents to self or others.\n\n(3) When ordering a hearing pursuant to subsection (2):\n\n(a) In nonfelony cases, the court shall appoint a qualified examiner to examine and report upon the physical and mental condition of the defendant. The court may appoint either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. The examiner shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners; and\nl condition of the defendant. The court may appoint either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. The examiner shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners; and\n\n(b) In felony cases, the court shall appoint three qualified examiners to examine and report upon the physical and mental condition of the defendant. In each case, the court shall appoint as examiners psychiatrists, licensed psychologists, or qualified physicians; provided that one of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The three examiners shall be appointed from a list of certified examiners as determined by the department of health.\n\nTo facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of examination for a period not exceeding thirty days or a longer period as the court determines to be necessary for the purpose upon written findings for good cause shown. The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accordance with section 704-404(3), (5)(a), (b), (d), and (e), (7), (8), (9), (10), and (11). As used in this section, the term \"licensed psychologist\" includes psychologists exempted from licensure by section 465-3(a)(3) and \"qualified physician\" means a physician qualified by the court for the specific evaluation ordered.\n\n(4) Whether the court's order under subsection (1) is made on the basis of the medical or psychological evidence given at the trial, or on the basis of the report made pursuant to section 704-404, or the medical or psychological evidence given at a separate hearing, the burden shall be upon the State to prove, by a preponderance of the evidence, that the defendant is affected by a physical or mental disease, disorder, or defect and may not safely be discharged and that the defendant should be either committed or conditionally released as provided in subsection (1).\n\n(5) In any proceeding governed by this section, the defendant's fitness shall not be an issue. [L 1972, c 9, pt of §1; am L 1974, c 54, §2; am L 1979, c 3, §2; am L 1983, c 281, §1; am L 1986, c 314, §8; am L 1987, c 145, §2; am L 1988, c 305, §7; am L 1992, c 88, §2; gen ch 1992; am L 1997, c 306, §3; am L 2006, c 230, §10; am L 2008, c 99, §3 and c 100, §3; am L 2009, c 127, §2; am L 2011, c 99, §2; am L 2016, c 198, §5 and c 231, §§8, 9; am L 2020, c 26, §4]\n\nCOMMENTARY ON §704-411\n\nThis section rejects the concept of mandatory commitment following a qualified acquittal on the basis of a physical or mental disease, disorder, or defect which precluded defendant's responsibility.[1] The Code instead authorizes a flexible mode of disposition of defendants thus acquitted, which depends on (1) the restraint necessary to protect other members of society and the defendant from the consequences of a recurrence of the prohibited conduct, and (2) the conditions necessary to afford the defendant proper care and supervision.\n\nThe Code recognizes three types of dispositions: commitment, conditional release, and discharge. The Code utilizes the concept of conditional release, which is presently recognized in the field of civil commitment, but leaves the ultimate determination of the conditions of release with the court, rather than with the medical authority to whom the defendant is entrusted.\noper care and supervision.\n\nThe Code recognizes three types of dispositions: commitment, conditional release, and discharge. The Code utilizes the concept of conditional release, which is presently recognized in the field of civil commitment, but leaves the ultimate determination of the conditions of release with the court, rather than with the medical authority to whom the defendant is entrusted.\n\nSince the defendant has been detained for a substantial period of time for purposes of examination prior to the determination of the defendant's lack of responsibility, the examiners, in an appropriate case, may be able to indicate, at the trial or at a separate hearing, that commitment is not called for. In such a case, mandatory commitment followed by an application for release or discharge would be abusive and wasteful. Furthermore, a disease, disorder, or defect excluding responsibility which is influenced by biological or organic factors may be susceptible to adequate treatment (by means of drugs or otherwise) on an out-patient basis without danger to other members of society or may be such that repetition of the prohibited conduct is foreclosed. In such cases commitment should not be made mandatory.\n\nProof of penally prohibited conduct at the time of the alleged offense cannot be used as a justification for automatic commitment following an acquittal based on lack of responsibility.[2] A determination by the court will have to be made as to whether the defendant's condition at the time of disposition requires commitment, conditional release, or discharge. While proof of the commission of prohibited conduct and an acquittal predicated on lack of responsibility at the time of the conduct are relevant to and probative of present dangerousness, they are not substitutes for such a finding. Although the evidence at trial will be primarily devoted to a determination of the defendant's physical and mental condition at the time of the alleged offense, in certain cases the examiners may be able to indicate the risks which the defendant presents. In some cases a defendant, seeking to avoid penal liability on the basis of physical or mental disease, disorder, or defect excluding responsibility, may be quite willing to stipulate to the need for commitment or conditional release following acquittal. In such cases, it should not be necessary to require that the court hold a separate hearing for the purpose of determining the defendant's present condition and the risks the defendant presents.\n\nThe Code, therefore, provides in subsection (1) that the disposition order may be made on the basis of medical evidence given either at the trial or at a separate hearing. In those instances where the court believes that the evidence at trial is not sufficiently addressed to the risk of danger which the defendant presents to allow a determination of that issue, the court may order a separate hearing. Where either the prosecution or the defense believes that the evidence at the trial (including stipulations) is not dispositive of the issue of present danger, each is free to move for a separate post-acquittal hearing on that issue.\n\nSubsection (3) provides that the procedure to be followed with respect to a separate post-acquittal hearing shall conform to §704-404 to the extent applicable.\n\nSubsection (4) provides that the burden of proof with respect to the issue of present danger is on the government and that proof shall be by a preponderance of the evidence. This section is consistent with the burden the government must bear under §704-415 with respect to applications for discharge, conditional release, or modification of conditions of release.","path":["HI Code","Division 5","Title 37","Chapter 704"],"source_url":"http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0704/HRS_0704-0411.htm","current_through":"2026-08-14","vintage":"open-us-law v2026.08, retrieved 2026-09-14","retrieved_at":"2026-09-14T18:32:11Z","sha256":"310f2513583e08ca34d9b1f9c6cba770192a7356d3ff7b088055d1c93c924fd4","source_id":"us-hi","stale":false,"prev":"us-hi/haw.-rev.-stat.-704-410.5","next":"us-hi/haw.-rev.-stat.-704-412"},"notice":"GroundRules: Original legal text. Not legal advice."}