Criminal procedure and providing penalties

This bill moves to chapter 968 all current law provisions relating to investigative procedures such as inquests, John Doe proceedings, grand juries, wiretapping, and search and seizure provisions.

This bill creates a process that requires a court, upon the request of a district attorney and a showing that the information requested is relevant to a criminal investigation, to order a financial institution to disclose to the district attorney whether a specified person has or had an account at the financial institution.

Chapter 969, as reorganized under this bill, contains provisions addressing arrest and release, identifies ways to secure the appearance of a defendant, and includes provisions that allow expediting the processing of misdemeanors. Under current law, a citation issued by a law enforcement officer directs a person to appear in court and answer criminal charges. The citation may not be used as a criminal complaint. This bill allows a citation for a misdemeanor that is issued by a law enforcement officer to be used as a criminal complaint if the district attorney endorses it. The bill specifies that a citation must contain the crime the person allegedly committed, the time and place of the alleged commission, and the maximum penalty for the charged crime. The bill requires a law enforcement officer citing a person for a misdemeanor to release the person without a cash bond unless certain circumstances apply, including if the person does not provide proper identification or appears to pose a danger to a person or property.

Under current law, a law enforcement officer generally may release a person who is arrested without a warrant without requiring the person to appear before a judge if the law enforcement officer is satisfied that there are insufficient grounds to issue a criminal complaint against the person. Under this bill, a law enforcement officer may release such a person without determining that there are insufficient grounds to issue a criminal complaint.

If the court allows the release of a defendant before conviction or the release of a convicted person prior to sentencing, this bill specifies that the court may either release the person to return on a specific date without conditions or release the person on a personal recognizance bond, an unsecured appearance bond, or a secured appearance bond. This bill also allows a third party who has deposited cash for the release of a person on a secured appearance bond to apply to the court for an order to return the deposit before the entry of a judgment of conviction or forfeiture. The court then may determine whether to remit the deposit and whether to modify the conditions of release.

This bill generally requires a court to release a person who is arrested without a warrant within 48 hours of the arrest unless the court has determined there is probable cause to arrest the person.

Under this bill, chapter 970 contains provisions relating to the commencement of prosecutions.

This bill replaces several statutes governing deferred prosecution agreements in specific cases with one general statute defining and authorizing deferred and suspended prosecution agreements. The bill provides that the same standards that govern a district attorney's charging authority also govern the district attorney's authority to enter into a deferred prosecution agreement and that the same standards that apply to a court's authority to schedule cases and grant continuances apply to a court's authority to suspend prosecution under a suspended prosecution agreement. Under this bill, both a deferred prosecution agreement and a suspended prosecution agreement are enforceable in the same manner as a plea agreement. The bill further notes that consenting to a deferred prosecution or suspended prosecution agreement is not an admission of guilt nor is the consent admissible in a trial relating to the charge to which the agreement pertains. This bill makes generally applicable a provision in current law that grants immunity from civil liability in excess of $25,000 for acts or omissions by an organization or individual for whom an agreement assigns an individual to work.

Under this bill, chapter 971 addresses pretrial procedures and contains subchapters for commencement of proceedings, pleas, and provisions to expedite proceedings, discovery, motions, and juveniles in adult court. This bill creates one general statute for plea agreements. The bill provides that the district attorney and the defendant, without the court's participation, may reach a plea agreement. The agreement may require the district attorney, if the defendant enters a plea of guilty or no contest, to take certain actions, including moving to dismiss or amend any charge; recommending the defendant's request for a particular disposition; or agreeing that a specific disposition is appropriate. The bill also creates a single statute to clarify, and explain the consequences of, the different pleas available to the defendant.

Under current law, before a court may dismiss a criminal case, the court must inquire if the district attorney has offered all of the victims an opportunity to confer with the district attorney concerning the prosecution and outcome of the case. This bill codifies case law by adding that, if the district attorney moves to dismiss a complaint, the trial court must grant the motion unless the court finds that dismissal is contrary to the public interest or, if the motion is made during the trial, unless the defendant has not consented.

Under the bill, unless the district attorney establishes substantial prejudice, the court must grant a motion, made before sentencing, to withdraw a plea of guilty or no contest if a fair and just reason for doing so is established. Under this bill, the court must grant such a motion, made after sentencing, if the defendant did not knowingly, voluntarily, and understandingly enter the plea or if withdrawal is required to prevent a manifest injustice. Finally, the bill specifies that a withdrawal of a plea of guilty or no contest vacates the judgment, reinstates any original charge, and restores the parties to the position they were in before the plea was accepted.

This bill specifies that discovery is intended to do all of the following: promote fair and expeditious disposition of criminal charges, provide the defendant with sufficient information to make an informed plea, permit thorough preparation for and minimize surprise at trial, reduce interruptions and complications during trial and avoid unnecessary trials by resolving any issues before trial, minimize inequities among similarly situated defendants, effect economies, and minimize the burden upon victims and witnesses.

Current law requires a district attorney, upon demand and within a reasonable time before trial, to disclose to the defendant any relevant expert reports or statements or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject of his or her testimony, and the results of any examination, scientific test, experiment, or comparison that the district attorney intends to offer in evidence. This bill requires any party who intends to call an expert witness to, not less than 30 days before trial, notify the other party of the expert's name, address, and qualifications and furnish any relevant expert reports or statements or, if none, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any mental examination, scientific test, experiment, or comparison that the first party intends to offer in evidence.

Under this bill, before trial and upon motion by either party, the court may issue a subpoena to require the production of documents and other tangible objects if the evidence may be material to the determination of issues. The motion and the subpoena must specify who must produce the material, whether certified copies of documents may be submitted in lieu of appearance, and other conditions.

Under this bill, the disclosure of discoverable material may be accomplished in any manner mutually agreeable to the parties. If the parties do not agree, the party that has the duty to disclose must either provide a copy of the material to be disclosed or notify the other party that the material may be inspected, copied, or photographed during specified reasonable times and provide suitable machinery for making copies.

This bill codifies the authority of courts to issue and amend scheduling orders.

Under this bill, the court may, upon motion by the district attorney, order a defendant to participate in a reasonable procedure to obtain nontestimonial evidence. Such procedures include appearing, moving, or speaking for identification in a lineup; trying on clothing or other articles; providing handwriting or voice exemplars; being photographed; having fingerprints or other body impressions taken; providing samples of blood, urine, saliva, semen, skin, breath, hair, or nails or materials under the nails; submitting to body measurements or other reasonable body surface examinations; and submitting to physical or medical inspection.

Under this bill, the court may, upon motion of a defendant, require an individual to participate in a reasonable procedure to obtain nontestimonial evidence if an affidavit or testimony shows probable cause to believe that the individual committed the crime with which the defendant is charged and that the evidence sought is necessary to an adequate defense and cannot practicably be obtained from other sources.

Under this bill, the district attorney may provide discovery before the initial appearance. Also, this bill requires the district attorney to disclose, at the initial appearance after the defendant has obtained or waived legal representation, any pertinent law enforcement investigative reports the district attorney has and a copy of the defendant's criminal record.

Under current law, the procedure for asserting that a statute is unconstitutional is located in the civil procedure statutes. This bill moves to the criminal procedure code the provision that, if a defendant moves to dismiss a criminal prosecution by asserting that the statute under which he or she is charged is unconstitutional, the defendant must serve the motion on the attorney general and the district attorney.

This bill specifies that, if a defendant moves for severance because a codefendant's out-of-court statement refers to, but is not admissible against, the defendant and the court determines that the state intends to offer the statement in evidence, the court must require the district attorney to elect one of the following:

1) a joint trial at which the statement is not received in evidence; 2) a joint trial at which the statement is received in evidence only after all references to the defendant have been deleted, if admission of such a statement will not cause prejudice; 3) a separate trial for the defendant; or 4) if the court approves, a single trial with a separate jury for the defendant and the codefendant.

Under this bill, chapter 972 contains statutes relating to criminal trials. Under this bill, if the court at a criminal trial authorizes the jurors to ask questions of witnesses, the court must instruct the jury to ask only questions that clarify information already presented and must instruct the jury of the procedure to be used.

The procedure provides that the question must be submitted in writing to the judge who will show the question to the parties. The parties may object to the question without the jury knowing. If the judge, upon reviewing the question and any objections, determines that the question is legally proper, the judge may ask it of the witness.

This bill clarifies procedures for jury selection and handling alternate jurors.

Under current law, if the number of jurors, including any additional jurors selected, exceeds the required number when the case is submitted to the jury, the court must discharge by lot jurors that will not participate in deliberations. Under this bill, the court may, for good cause, discharge additional jurors other than by lot. Moreover, this bill allows the court to determine which jurors will not participate in deliberations but retain those jurors as alternates after the jury retires to deliberate.

If a juror who is participating in deliberations becomes unavailable due to severe illness or extraordinary circumstances, the judge may replace the unavailable juror with a retained alternate juror. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.

This bill defines "stipulation" as an agreement between the parties that a specified fact is taken as established without need for proof. Further, a stipulation must be set forth on the record when the court accepts it, and, in a jury trial, the court must instruct the jury to take stipulated facts as conclusively proved.

This bill specifies that a verdict must be unanimous and returned in open court.

Under current case law, a defendant in a criminal case has the right to poll the jury, and refusal to permit the defendant to do so is an error for which the verdict will be set aside. This bill requires a court to ask each juror individually whether the verdict as returned was and is the juror's verdict. This bill requires the court to accept the verdict if it is in proper form and confirmed by the poll.

Under this bill, chapter 975 addresses mental health issues affecting a criminal prosecution such as competency to stand trial and mental responsibility, commonly known as the "insanity defense." Under current law, when there is reason to doubt a defendant's competency to proceed in a criminal action, the court must appoint an examiner to submit a report on the condition of the defendant that contains specified findings. This bill adds that, if the examiner reports that the defendant is not competent to proceed and that the defendant is not likely to become competent within the maximum period of commitment under the competency statutes, the examiner must provide his or her opinion on whether the defendant meets the criteria for civil commitment.

The bill reorganizes the competency hearing statutes and makes certain changes to burdens of persuasion. Under current law, at the outset of the competency hearing, if the defendant claims to be incompetent or is silent, the defendant must be found incompetent unless the state proves by the greater weight of the credible evidence that the defendant is competent. Under current law, if the defendant claims to be competent, the defendant must be found competent unless the state proves by clear and convincing evidence that the defendant is incompetent. Under the bill, the state has the burden of going forward with evidence at a competency hearing, and the court may find the defendant competent to proceed only if the court finds by the greater weight of the evidence that the defendant is competent to proceed. The bill specifies the following: 1) if the defendant is not competent and the court finds by the greater weight of the evidence that the defendant is not likely to become competent within the maximum period of commitment, the court must order the defendant be released or delivered to a facility; 2) if the defendant is not competent and the court finds by the greater weight of the evidence that the defendant is likely to become competent within the maximum period of commitment without inpatient treatment, the court must order that the defendant be released and may require the defendant to participate in outpatient treatment, or undergo periodic reexaminations to determine whether the defendant has become competent to proceed, for a period that does not exceed the maximum period of commitment; or 3) if the defendant is not competent and the court finds by clear and convincing evidence that the defendant is likely to become competent within the maximum period of commitment if provided appropriate inpatient treatment, the court must commit the defendant to the custody of the Department of Health Services (DHS) for treatment.

Finally, if the defendant is committed to DHS and the state proves by clear and convincing evidence that the defendant is not competent to refuse medication or treatment, the court must find that the defendant is not competent to refuse medication or treatment and must order whoever administers medication or treatment to the defendant to observe appropriate medical standards.

Under current law, if the defendant is committed to the custody of DHS for treatment following a competency proceeding, the days spent in commitment are given credit toward the service of his or her sentence for the same course of conduct.

This bill requires the court to include in the commitment order a specific finding of the number of days spent in precommitment custody.

Current law requires DHS to periodically reexamine the defendant and to submit to the court a written report on the defendant's mental condition at three months, six months, and nine months after commitment. This bill requires an additional report if DHS determines that the defendant has become competent or that the defendant is not likely to become competent within the remaining commitment period and requires the court to schedule a review of this additional report within 14 days.

This bill creates a process for the court to follow whenever the court determines there is reason to doubt a defendant's competency to proceed when seeking an appeal or a motion for postconviction relief. Pending the determination or after a finding of incompetency, the circuit court may allow proceedings on any issue raised by the defendant's attorney that rests on the records, does not require the defendant to assist counsel or make a decision, and involves no risk to the defendant and the court of appeals may grant the defendant a continuance or lengthen the time for filing necessary notices or motions for postconviction relief. If the court finds that the defendant lacks competency, the court may appoint a guardian to make decisions or may order treatment to restore the defendant to competency to pursue postconviction relief. Finally, the bill provides that a defendant who lacks competency to pursue postconviction relief may, after regaining competency, raise any issue at a later proceeding that he or she did not raise earlier because of incompetency.

Under current law, if a defendant is found not guilty by reason of mental disease or defect, the court must enter a judgment of not guilty by reason of mental disease or defect and proceed to commitment. The judgment is interlocutory to the commitment order and reviewable upon appeal. Under this bill, the court must proceed to a dispositional hearing and the commitment order is the final order and is appealable as a matter of right. Upon appeal, this bill provides that all properly preserved issues, including those relating to the guilt phase of the trial, may be raised.