§ 29-3703 — Trial court; person found not responsible by reason of insanity; review records; conduct hearing; evaluation; treatment program; discharge plan; compliance with conditions; reports

Nebraska § 29-3703

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1) The court which tried a person who is found not responsible by reason of insanity shall annually and may, upon its own motion or upon motion of the person or the prosecuting attorney, review the records of such person and conduct an evidentiary hearing on the status of the person. The court may, upon its own motion or upon a motion by the person or the prosecuting attorney, order an independent psychiatric or psychological evaluation of the person. The court shall consider the results of the evaluation at the evidentiary hearing. When the independent evaluation is conducted pursuant to a motion by the court or the prosecuting attorney, the cost of such independent evaluation shall be the expense of the county. When the evaluation is conducted pursuant to a motion by the person and if the person is not indigent, the cost of the evaluation shall be borne by the person.
(2) If as a result of such hearing the court finds that such person is no longer dangerous to himself, herself, or others by reason of mental illness or defect and will not be so dangerous in the foreseeable future, the court shall order such person unconditionally released from court-ordered treatment. If the court does not so find, the court shall order that such person participate in an appropriate treatment program specifying conditions of liberty and monitoring consistent with the treatment needs of the person and the safety of the public. The treatment program may involve any public or private facility or program which offers treatment for mental illness and may include an inpatient, residential, day, or outpatient setting. The court shall place the person in the least restrictive available treatment program that is consistent with the treatment needs of the person and the safety of the public.
(3) If the person has been treated in a regional center or other appropriate facility and is ordered placed in a less restrictive treatment program, the regional center or other appropriate facility shall develop an individual discharge plan consistent with the order of the court and shall provide the less restrictive treatment program a copy of the discharge plan and all relevant treatment information.
(4) Upon motion of the prosecuting attorney or upon its own motion, but at least annually, the court shall hold a hearing to determine whether the person is complying with the conditions set by the court. Upon an initial showing of probable cause by affidavit or sworn testimony that the person is not complying with the court-ordered conditions, the court may issue a warrant directing the sheriff or any peace officer to take the person into custody and place him or her into a mental health center, regional center, or other appropriate facility with available space where he or she shall be held pending the hearing. When a person has been taken into custody pursuant to this subsection, the hearing shall be held within ten days. Following the hearing, the court shall determine whether placement in the current treatment program should be continued or ceased and whether the conditions of the placement should be continued or modified.
(5) Any treatment program to which a person is committed on July 16, 1994, under this section or section 29-3702 shall submit reports to the trial court and the prosecuting attorney documenting the treatment progress of that person at least annually. Additionally, if the person fails to comply with any condition specified by the court, the court and the prosecuting attorney shall be notified forthwith.

Legislative History

Source: Laws 1981, LB 213, § 5; Laws 1994, LB 498, § 3. Annotations: Under subsections (2) and (3) of this section, following the annual status review of a person committed to treatment in a regional center, the court may either order the person released unconditionally, order the person to remain committed to the regional center, or order the person discharged from the regional center and placed in a less restrictive treatment program. State v. Schinzel, 271 Neb. 281, 710 N.W.2d 634 (2006). Under this section, a person cannot be placed in the "joint legal custody" of two separate agencies or treatment programs. State v. Schinzel, 271 Neb. 281, 710 N.W.2d 634 (2006). At an annual review hearing, the court may receive records for the purpose of providing the basis for expert witnesses' opinions. At an annual review hearing, courts are to consider public safety when determining what conditions of liberty and monitoring to place upon a person found to be mentally ill and dangerous. State v. Simants, 248 Neb. 581, 537 N.W.2d 346 (1995). A court may review records and conduct an evidentiary hearing to determine if the insanity acquittee remains dangerous. State v. Simants, 245 Neb. 925, 517 N.W.2d 361 (1994). At an annual review hearing pursuant to this section, the court may receive records for the purpose of providing the basis for expert witness' opinions. State v. Hayden, 237 Neb. 286, 466 N.W.2d 66 (1991). It is proper that the State recommend a treatment plan, provided that the State allows the person being recommitted an opportunity to confront and cross-examine the State's witness presenting the plan regarding the plan's content. The court may consider any treatment plan which may be proposed by an expert witness for the person being recommitted. State v. Hayden, 237 Neb. 286, 466 N.W.2d 66 (1991). The civil commitment weight of evidence standard, that of "clear and convincing evidence," is appropriate for persons acquitted on grounds of insanity and is not vague and ambiguous. Tulloch v. State, 237 Neb. 138, 465 N.W.2d 448 (1991). The court's incorporation by reference of the conditions of confinement set forth in a doctor's report did not deny access to the district court. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989). Where the only issue is whether the restrictions of confinement should be relaxed and whether such modifications would be consistent with public safety, that determination is left to the trial court's discretion and will not be disturbed on appeal absent an abuse of discretion. State v. Morris, 2 Neb. App. 887, 518 N.W.2d 664 (1994).