77-19-204. Order for hearing -- Examinations of inmate -- Scope of examination and report.
(1) A court shall order the Department of Health and Human Services to immediately examine an inmate sentenced to death and report to the court concerning the inmate's mental condition if:
(a) the court receives notice of a good reason to address the inmate's incompetency to be executed under Section 77-19-202;
(b) a petition is filed with the court that complies with Section 77-19-203 and the court has good reason to believe the inmate may be incompetent to be executed; or
(c) a successive petition is filed with the court that complies with Section 77-19-203.5 and the court has a significant question about the inmate's competency to be executed.
(2)
(a) The inmate subject to examination under Subsection (1) shall be examined by at least two mental health experts who are not involved in the inmate's current treatment.
(b) The Department of Corrections shall provide information and materials to the examiners relevant to a determination of the inmate's competency to be executed.
(c) The court may provide, in the court's order appointing examiners, that a custodian of mental or physical health records pertaining to the inmate shall provide the mental or physical health records to the examiners without the need for consent of the defendant or any further order of the court.
(3) The inmate shall make himself or herself available and fully cooperate in the examination by the Department of Health and Human Services and any other independent examiners for the defense or the state.
(4) An examiner shall in the conduct of the examiner's examinations and in the examiner's reports to the court consider and address, in addition to any other factors determined to be relevant by the examiner:
(a) the inmate's awareness of the fact of the inmate's impending execution;
(b) the inmate's understanding that the inmate is to be executed for the crime of murder;
(c) the nature of the inmate's mental disorder, if any, and its relationship to the factors relevant to the inmate's competency; and
(d) whether psychoactive medication is necessary to maintain or restore the inmate's competency.
(5)
(a) An examiner who is examining the inmate shall provide a report to the court and the attorneys for the state and the inmate within 30 days after the day on which the examiner received the court's order for an examination of the inmate.
(b) The report described in Subsection (5)(a) shall inform the court of the examiner's opinion concerning the competency of the inmate to be executed.
(6)
(a) All interviews with the inmate conducted by the examiners shall be videotaped, unless otherwise ordered by the court for good cause shown.
(b) The Department of Corrections shall provide the videotaping equipment and facilitate the videotaping of the interviews.
(c) Immediately following the videotaping, the videotape shall be provided to the attorney for the state, who shall deliver the videotape as soon as practicable to the court in whose court the competency determination is pending.
(d) The court shall grant counsel for the state and for the inmate, and an examiner who is examining the inmate under this part access to view the videotape at the court building where the court is located that is conducting the competency determination under this part.
(7) Any written report submitted by an examiner 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 on each issue referred for examination by the court, and indicate specifically those issues, if any, on which the examiner could not give an opinion; and
(d) identify the sources of information used by the examiner and present the basis for the examiner's clinical findings and opinions.
(8)
(a)
(i) When all reports from examiners are received, the court shall set a date for a competency hearing.
(ii) The competency hearing shall be held no sooner than five days after, or later than 15 days after, the day on which the reports are received by the court.
(b)
(i) Any examiner directed by the Department of Health and Human Services to conduct the examination may be subpoenaed to provide testimony at the hearing.
(ii) If the examiners are in conflict as to the competency of the inmate, all of them should be called to testify at the hearing if they are reasonably available.
(c)
(i) The court may call any examiner to testify at the hearing who is not called by the parties.
(ii) An examiner called by the court may be cross-examined by counsel for the parties.
(9)
(a)
(i) An inmate shall be presumed competent to be executed unless the court, by a preponderance of the evidence, finds the inmate incompetent to be executed.
(ii) The burden of proof is upon the proponent of incompetency at the hearing.
(b) An adjudication of incompetency to be executed does not operate as an adjudication of the inmate's incompetency to give informed consent for medical treatment or for any other purpose.
(10)
(a) If the court finds the inmate incompetent to be executed, the court's order shall contain findings addressing each of the factors in Subsections (4)(a) through (d).
(b) The order finding the inmate incompetent to be executed shall be:
(i) delivered to the Department of Health and Human Services; and
(ii) accompanied by:
(A) copies of the reports of the examiners filed with the court pursuant to the order of examination, if not provided previously;
(B) copies of any of the psychiatric, psychological, or social work reports submitted to the court relative to the mental condition of the inmate; and
(C) any other documents made available to the court by either the defense or the state, pertaining to the inmate's current or past mental condition.
(c) A copy of the order finding the inmate incompetent to be executed shall be delivered to the Department of Corrections.
Amended by Chapter 345, 2026 General Session
