77-15a-104. Hearing -- Notice -- Stay of proceeding -- Examinations of defendant -- Scope of examination -- Report -- Procedures.
(1) If a prosecuting attorney files a notice of intent to seek a sentence of death, and unless the defendant objects to the appointment, the court shall appoint a prescreening psychologist to determine the defendant's intelligence quotient using the procedures for determining an intelligence quotient that are the medical community's standards at the time of appointment.
(2)
(a) If a defendant objects to the appointment of a prescreening psychologist as described in Subsection (1), the defendant waives the right to assert that the defendant is intellectually disabled for purposes of establishing that the defendant is not subject to a sentence of death.
(b) The court shall make a determination on the record as to whether the defendant's waiver under Subsection (2)(a) is knowing and voluntary.
(c) A waiver under this Subsection (2) does not preclude the defendant from offering evidence of the defendant's mental capacity as mitigation evidence in the sentencing proceeding described in Section 76-3-207.
(3)
(a) Within 30 days after that day on which the defendant is tested by an appointed prescreening psychologist, the prescreening psychologist shall submit a written report to the court on the prescreening psychologist's determination of the defendant's intelligence quotient.
(b) The court may grant the prescreening psychologist an extension under Subsection (3)(a) upon a showing of good cause.
(4)
(a)
(i) If a prescreening psychologist determines that the defendant's intelligence quotient is higher than 75:
(A) the defendant shall present any evidence of significant subaverage general intellectual functioning or significant deficiencies in adaptive functioning within 30 days after the day on which the prescreening psychologist submits the report described in Subsection (3); and
(B) except as provided in Subsection (4)(c), the court shall make the prescreening psychologist's report available to the defendant but seal the report as to all other persons.
(ii) The court may grant the defendant an extension under Subsection (4)(a)(i)(A) upon a showing of good cause.
(b) If a prescreening psychologist determines that the defendant's intelligence quotient is higher than 75 and the defendant presents no contrary evidence under Subsection (4)(a)(i)(A):
(i) no further examination of the defendant may be ordered under this section; and
(ii) the court shall enter an order stating that a sentence of death is a sentencing option in the case before the court.
(c) The court shall release the prescreening psychologist's report on the motion of any party if:
(i) the court orders an examination as described in Subsection (6); or
(ii) the defendant introduces the report in the case before or after conviction or in any related collateral proceeding.
(d) A determination by a prescreening psychologist that the defendant's intelligence quotient is higher than 75 does not preclude the defendant from introducing evidence of the defendant's mental capacity at the sentencing proceeding described in Section 76-3-207.
(5) If the prescreening psychologist determines that the defendant's intelligence quotient is 75 or less, or the defendant presents evidence of an intellectual disability as described in Subsection (4)(a)(i)(A):
(a) the court may stay all proceedings in order to address the issue of whether the defendant is intellectually disabled; and
(b) the court shall order an examination of the defendant as described in Subsection (6).
(6)
(a) The court shall order the Department of Health and Human Services to appoint at least two mental health experts to examine the defendant and report to the court.
(b) An examiner described in Subsection (6)(a):
(i) may not be involved in the current treatment of the defendant; and
(ii) shall have expertise in intellectual disability assessment.
(c) Upon appointment of the examiners, the defendant, or other party as directed by the court, shall provide information and materials to the examiners relevant to a determination of whether the defendant is intellectually disabled, including:
(i) copies of the charging document;
(ii) arrest or incident reports pertaining to the charged offense;
(iii) known criminal history information; and
(iv) known prior mental health evaluations and treatments.
(d) The court may make the necessary orders to provide the information listed in Subsection (6)(c) to the examiners.
(e) The court may provide in the court's order appointing the examiners that custodians of mental health records pertaining to the defendant shall provide those records to the examiners without the need for consent of the defendant or further order of the court.
(f) Before examining the defendant, an examiner shall specifically advise the defendant of the limits of confidentiality as provided under Section 77-15a-106.
(7) During any examinations under Subsection (6), and unless the court directs otherwise, the defendant shall be retained in the same custody or status the defendant was in at the time the examination was ordered.
(8) An examiner described in Subsection (6)(a) shall, in the conduct of the examiner's examinations and reports to the court, consider and address:
(a) whether the defendant is intellectually disabled; and
(b) the degree of any intellectual disability the examiner finds to exist.
(9)
(a) An examiner shall provide a written report to the court, the prosecution, and the defense within 60 days after the day on which the examiner receives the court's order, unless the examiner submits to the court a written request for additional time in accordance with Subsection (9)(c).
(b) The written report shall provide, to the court and to prosecution and defense counsel, the examiner's written opinions concerning whether the defendant is intellectually disabled.
(c) If an examiner requests of the court additional time, the examiner shall provide the report to the court and counsel within 90 days after the day on which the examiner receives the court's order, unless the court authorizes, for good cause shown, an additional period of time to complete the examination and provide the report.
(10) Any written report submitted by an examiner under Subsection (9) shall:
(a) identify the specific matters referred for evaluation;
(b) describe the procedures, techniques, and tests used in the examination and the purpose or purposes for each;
(c) state the examiner's clinical observations, findings, and opinions; and
(d) identify the sources of information used by the examiner and present the basis for the examiner's clinical findings and opinions.
(11) Within 30 days after receiving the report from the Department of Health and Human Services, but not later than five days before hearing, or at any other time the court directs, the prosecuting attorney shall file and serve upon the defendant a notice of witnesses the prosecuting attorney proposes to call in rebuttal.
(12)
(a) Except pursuant to Section 77-15a-105, this chapter does not prevent any party from producing any other testimony as to the intellectual or adaptive functioning of the defendant.
(b) Expert witnesses who are not appointed by the court are not entitled to compensation under Subsection (13).
(13)
(a) The Department of Health and Human Services shall pay the expenses of examinations of the defendant ordered by the court under this section.
(b) The Department of Health and Human Services shall charge travel expenses associated with any court-ordered examination that are incurred by the defendant to the county where prosecution is commenced.
(14)
(a)
(i) When the report is received, the court shall set a date for a hearing that is within a reasonable time before jury selection to determine if the exemption under Section 77-15a-101.5 applies.
(ii) The court shall make a determination described in Subsection (14)(a)(i) within a reasonable time before jury selection.
(b) Prosecution and defense counsel may subpoena to testify at the hearing any person or organization appointed by the Department of Health and Human Services to conduct the examination and any independent examiner.
(c)
(i) The court may call any examiner to testify at the hearing who is not called by the parties.
(ii) If the court calls an examiner, counsel for the parties may cross-examine that examiner.
(15)
(a) A defendant is presumed not to be intellectually disabled unless the court, by a preponderance of the evidence, finds the defendant to be intellectually disabled.
(b) The burden of proof is upon the proponent of intellectual disability at the hearing.
(c) A finding of intellectual disability does not operate as an adjudication of intellectual disability for any purpose other than exempting the defendant from a sentence of death in the case before the court.
(16)
(a) If the court finds the defendant is intellectually disabled, the court shall issue an order:
(i) containing findings of fact and conclusions of law, and addressing each of the factors in Subsections (8)(a) and (b); and
(ii) stating that a sentence of death is not a sentencing option in the case before the court.
(b)
(i) A finding by the court regarding whether the defendant qualifies for an exemption under Section 77-15a-101.5 is a final determination of that issue for purposes of this chapter.
(ii) Whether the defendant is intellectually disabled for purposes of this chapter may not be submitted to the jury by instruction, special verdict, argument, or other means.
(iii) This chapter does not prevent the defendant from submitting evidence of intellectual disability or other mental deficiency to establish a mental condition as a mitigating circumstance under Section 76-3-207.
(17) Failure to comply with this section does not result in the dismissal of criminal charges.
Amended by Chapter 345, 2026 General Session
