2019 Nebraska Revised Statutes
Chapter 29 - CRIMINAL PROCEDURE
29-1823 Mental incompetency of defendant before trial; determination by judge; effect; costs; hearing; commitment proceeding; treatment; department; duties.

29-1823. Mental incompetency of defendant before trial; determination by judge; effect; costs; hearing; commitment proceeding; treatment; department; duties.

(1) If at any time prior to trial it appears that the defendant has become mentally incompetent to stand trial, such disability may be called to the attention of the district or county court by the county attorney or city attorney, by the defendant, or by any person for the defendant. The judge of the district or county court of the county where the defendant is to be tried shall have the authority to determine whether or not the defendant is competent to stand trial. The judge may also cause such medical, psychiatric, or psychological examination of the defendant to be made as he or she deems warranted and hold such hearing as he or she deems necessary. The cost of the examination, when ordered by the court, shall be the expense of the county in which the crime is charged. The judge may allow any physician, psychiatrist, or psychologist a reasonable fee for his or her services, which amount, when determined by the judge, shall be certified to the county board which shall cause payment to be made. Should the judge determine after a hearing that the defendant is mentally incompetent to stand trial and that there is a substantial probability that the defendant will become competent within the foreseeable future, the judge shall order the defendant to be committed to the Department of Health and Human Services to provide appropriate treatment to restore competency. This may include commitment to a state hospital for the mentally ill, another appropriate state-owned or state-operated facility, or a contract facility or provider pursuant to an alternative treatment plan proposed by the department and approved by the court under subsection (2) of this section until such time as the disability may be removed.

(2)(a) If the department determines that treatment by a contract facility or provider is appropriate, the department shall file a report outlining its determination and such alternative treatment plan with the court. Within twenty-one days after the filing of such report, the court shall hold a hearing to determine whether such treatment is appropriate. The court may approve or deny such alternative treatment plan.

(b) A defendant shall not be eligible for treatment by a contract facility or provider under this subsection if the judge determines that the public's safety would be at risk.

(3) Within six months after the commencement of the treatment ordered by the district or county court, and every six months thereafter until either the disability is removed or other disposition of the defendant has been made, the court shall hold a hearing to determine (a) whether the defendant is competent to stand trial or (b) whether or not there is a substantial probability that the defendant will become competent within the foreseeable future.

(4) If it is determined that there is not a substantial probability that the defendant will become competent within the foreseeable future, then the state shall either (a) commence the applicable civil commitment proceeding that would be required to commit any other person for an indefinite period of time or (b) release the defendant. If during the period of time between the six-month review hearings set forth in subsection (3) of this section it is the opinion of the department that the defendant is competent to stand trial, the department shall file a report outlining its opinion with the court and within twenty-one days after such report being filed the court shall hold a hearing to determine whether or not the defendant is competent to stand trial. The state shall pay the cost of maintenance and care of the defendant during the period of time ordered by the court for treatment to remove the disability.

(5) The department may establish a network of contract facilities and providers to provide competency restoration treatment pursuant to alternative treatment plans under this section. The department may create criteria for participation in such network and establish training in competency restoration treatment for participating contract facilities and providers.

Source

• Laws 1967, c. 174, § 1, p. 489;
• Laws 1997, LB 485, § 1;
• Laws 2017, LB259, § 4;
• Laws 2019, LB686, § 5.
• Operative Date: July 1, 2021

Cross References

• Attendance of witnesses, right of accused to compel, see Article I, section 11, Constitution of Nebraska.

Annotations

• 1. Competency, how determined

• 2. Procedure

• 3. Miscellaneous

• 1. Competency, how determined

• Lay witness testimony is admissible in a competency hearing under subsection (1) of this section. State v. Martinez, 295 Neb. 1, 886 N.W.2d 256 (2016).

• The means to be employed to determine competency or the substantial probability of competency within the foreseeable future are discretionary with the district court, and the court may cause such medical, psychiatric, or psychological examination of the accused to be made as the court deems necessary in order to make such a determination. State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).

• If the district court determines that an accused is incompetent to stand trial, then the court must make a determination whether there is a substantial probability that the accused will become competent within the foreseeable future under this section; absent such a factual determination, there is no order to be meaningfully reviewed on appeal. The means to be employed to determine competency or the substantial probability of competency within the foreseeable future are discretionary with the district court, and the court may cause such medical, psychiatric, or psychological examination of the accused to be made as he or she deems necessary in order to make such a determination under this section. State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000).

• The issue of competency is one of fact, and the means used to resolve it are discretionary with the court. State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999).

• The question of competency to stand trial is to be determined by the court and the means are discretionary. State v. Crenshaw, 189 Neb. 780, 205 N.W.2d 517 (1973).

• 2. Procedure

• An "examination and hearing on competency" within the meaning of section 29-1207(4)(a) is the well-defined statutory procedure for determining competency to stand trial established by this section. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).

• Proceeding to determine the competency of the accused to stand trial is a "special proceeding" and an order finding the defendant incompetent to stand trial and ordering him confined until such time as he is competent is a "final order" from which an appeal may be taken. State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).

• 3. Miscellaneous

• An individual has a constitutional right not to be put to trial when lacking mental competency, and this includes sentencing. State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).

• Determination that accused is mentally incompetent to stand trial does not invalidate prior proceedings nor determine his mental condition at any prior time. State v. Klatt, 187 Neb. 274, 188 N.W.2d 821 (1971).

• This section does not change the common law in such cases but leaves it to the discretion of the court to hold such hearing, if any, as it deems necessary. State v. Anderson, 186 Neb. 435, 183 N.W.2d 766 (1971).

• Decision whether a competency hearing should be held is within sound discretion of trial court. Crenshaw v. Wolff, 504 F.2d 377 (8th Cir. 1974).