New Hampshire Revised Statutes
N.H. Rev. Stat. Ann. § 135:17 (2024)
Competency; Commitment for Evaluation
✓ 2024 N.H. RSA (Justia copy): later sessions are not included
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135:17 Competency; Commitment for Evaluation. –
I. (a) When a person is charged or indicted for any offense, or is awaiting the action of the grand jury on any felony, the circuit or superior court before which he or she is to be tried, if a plea of insanity is made in court, or said court is notified by either party that there is a question as to the competency or sanity of the person, may make such order for a pre-trial examination of such person by a qualified psychiatrist or psychologist on the staff of any public institution or by a private qualified psychiatrist or psychologist as the circumstances of the case may require, which order may include, though without limitation, examination at the secure psychiatric unit on an out-patient basis, the utilization of local mental health clinics on an in- or out-patient basis, or the examination of such person, should he or she be incarcerated for any reason, at his or her place of detention by qualified psychiatrists or psychologists assigned to a state or local mental health facility. Such pre-trial examination shall be completed within 45 days in the case of a person being held at a county correctional facility, otherwise 90 days after the date of the order for such examination, unless either party requests an extension of this period. For the purposes of this paragraph and RSA 135:17-a, III, "qualified" means board-eligible or board-certified in forensic psychiatry or psychology, or demonstrated competence and experience in completing court-ordered forensic criminal evaluations. A licensed out-of-state psychiatrist or psychologist who meets the definition of qualified may also conduct evaluations under this paragraph and RSA 135:17-a, III.
(b) In cases where the person is being held at a county correctional facility or the New Hampshire state prison, the facility may request a pre-trial examination of such person for the purpose of determining if the person is competent to stand trial. Such request shall be reviewed, and a decision rendered by the district or superior court before which he or she is to be tried.
(c) In cases where the person is incarcerated and a pre-trial examination has not been performed within 45 days of the court's order, the court shall, upon request of the person, order an evaluation by a qualified psychiatrist or psychologist. The court shall favorably consider a request that the psychiatrist or psychologist be treated as a defense expert who shall be compensated pursuant to RSA 604-A:6.
(d) In cases where the person is incarcerated and an examination has not been performed, the court before which he or she is to be tried shall review the person's bail status on a monthly basis.
I. (a) When a person is charged or indicted for any offense, or is awaiting the action of the grand jury on any felony, the circuit or superior court before which he or she is to be tried, if a plea of insanity is made in court, or said court is notified by either party that there is a question as to the competency or sanity of the person, may make such order for a pre-trial examination of such person by a qualified psychiatrist or psychologist on the staff of any public institution or by a private qualified psychiatrist or psychologist as the circumstances of the case may require, which order may include, though without limitation, examination at any suitable location, should he or she be incarcerated for any reason, at his or her place of detention by qualified psychiatrists or psychologists assigned to a state or local mental health facility, whether in-person or via appropriate electronic means. If, within 10 days of the scheduling of the examination, the prosecutor or defense counsel objects to the examination's being conducted by electronic means, the electronic evaluation shall be canceled, and an in-person examination shall be scheduled. The court may determine that such pre-trial examination is unnecessary and proceed according to RSA 135:17-a, I. In all other cases, such pre-trial examination shall be completed within 45 days in the case of a person being held at a county correctional facility, otherwise 90 days after the date of the order for such examination, unless either party requests an extension of this period. For the purposes of this paragraph and RSA 135:17-a, III, "qualified" means board-eligible or board-certified in forensic psychiatry or psychology, or demonstrated competence and experience in completing court-ordered forensic criminal evaluations. A licensed out-of-state psychiatrist or psychologist who meets the definition of qualified may also conduct evaluations under this paragraph and RSA 135:17-a, III.
(b) In cases where the person is being held at a county correctional facility or the New Hampshire state prison, the facility may request a pre-trial examination of such person for the purpose of determining if the person is competent to stand trial. Such request shall be reviewed, and a decision rendered by the district or superior court before which he or she is to be tried.
(c) In cases where the person is incarcerated and a pre-trial examination has not been performed within 45 days of the court's order, or when the person is not incarcerated, performed within 90 days, the court shall, upon request of the person, order an evaluation by a qualified psychiatrist or psychologist. The court shall favorably consider a request that the psychiatrist or psychologist be treated as a defense expert who shall be compensated pursuant to RSA 604-A:6.
(d) In cases where the person is incarcerated and an examination has not been performed, the court before which he or she is to be tried shall review the person's bail status on a monthly basis. In cases where the person is not incarcerated, and the evaluation has not been completed within 90 days, the court shall schedule a status conference, and every 30 days thereafter.
(e) The court shall order that all medical, mental health, and educational records from the last 3 years be provided to the forensic examiner. Records dating further back in time shall be ordered to be provided as necessary. Records used by the forensic examiners will not be released to any parties in the matter without a judicial order. The court shall consider the person's privacy interest in the content of the records used to produce the forensic evaluation and the access-seeking party's need to review the records received to facilitate the forensic evaluation.
(f) Failure of the defendant to appear for and participate in the forensic evaluation, as ordered, or to provide records, as ordered, may constitute good cause for an extension of the time frames herein and may subject the defendant to contempt of court.
(g) In cases where a forensic evaluation as ordered pursuant to RSA 135:17, I (a) is unavailable, the court may inquire of the parties if a hearing pursuant to RSA 135:17-a, I is required either due to the issue of competency being contested, or the issue of restorability being contested. If the issues of competency and restorability are not contested due to agreement that the defendant is not competent and not restorable, the court may dismiss the charges without prejudice under RSA 135:17-a, I and shall proceed as provided in RSA 135:17-a, V.
II. The circuit or superior court may allow the parties to obtain separate competency evaluations if such request is made and the circumstances require it. The competency evaluations shall address:
(a) Whether the defendant suffers from a mental disease or defect; and
(b) Whether the defendant has a rational and factual understanding of the proceedings against him or her, and sufficient present ability to consult with and assist his or her lawyer on the case with a reasonable degree of rational understanding.
III. If the qualified psychiatrist or psychologist concludes that the defendant is not competent to stand trial under the definition set forth in II(b), the evaluation shall include the qualified psychiatrist's or psychologist's findings as to whether there is a course of treatment which is reasonably likely to restore the defendant to competency.
[Paragraph I effective until January 1, 2025; see also paragraph I set out below.]
I. (a) When a person is charged or indicted for any offense, or is awaiting the action of the grand jury on any felony, the circuit or superior court before which he or she is to be tried, if a plea of insanity is made in court, or said court is notified by either party that there is a question as to the competency or sanity of the person, may make such order for a pre-trial examination of such person by a qualified psychiatrist or psychologist on the staff of any public institution or by a private qualified psychiatrist or psychologist as the circumstances of the case may require, which order may include, though without limitation, examination at the secure psychiatric unit on an out-patient basis, the utilization of local mental health clinics on an in- or out-patient basis, or the examination of such person, should he or she be incarcerated for any reason, at his or her place of detention by qualified psychiatrists or psychologists assigned to a state or local mental health facility. Such pre-trial examination shall be completed within 45 days in the case of a person being held at a county correctional facility, otherwise 90 days after the date of the order for such examination, unless either party requests an extension of this period. For the purposes of this paragraph and RSA 135:17-a, III, "qualified" means board-eligible or board-certified in forensic psychiatry or psychology, or demonstrated competence and experience in completing court-ordered forensic criminal evaluations. A licensed out-of-state psychiatrist or psychologist who meets the definition of qualified may also conduct evaluations under this paragraph and RSA 135:17-a, III.
(b) In cases where the person is being held at a county correctional facility or the New Hampshire state prison, the facility may request a pre-trial examination of such person for the purpose of determining if the person is competent to stand trial. Such request shall be reviewed, and a decision rendered by the district or superior court before which he or she is to be tried.
(c) In cases where the person is incarcerated and a pre-trial examination has not been performed within 45 days of the court's order, the court shall, upon request of the person, order an evaluation by a qualified psychiatrist or psychologist. The court shall favorably consider a request that the psychiatrist or psychologist be treated as a defense expert who shall be compensated pursuant to RSA 604-A:6.
(d) In cases where the person is incarcerated and an examination has not been performed, the court before which he or she is to be tried shall review the person's bail status on a monthly basis.
[Paragraph I effective January 1, 2025; see also paragraph I set out above.]
I. (a) When a person is charged or indicted for any offense, or is awaiting the action of the grand jury on any felony, the circuit or superior court before which he or she is to be tried, if a plea of insanity is made in court, or said court is notified by either party that there is a question as to the competency or sanity of the person, may make such order for a pre-trial examination of such person by a qualified psychiatrist or psychologist on the staff of any public institution or by a private qualified psychiatrist or psychologist as the circumstances of the case may require, which order may include, though without limitation, examination at any suitable location, should he or she be incarcerated for any reason, at his or her place of detention by qualified psychiatrists or psychologists assigned to a state or local mental health facility, whether in-person or via appropriate electronic means. If, within 10 days of the scheduling of the examination, the prosecutor or defense counsel objects to the examination's being conducted by electronic means, the electronic evaluation shall be canceled, and an in-person examination shall be scheduled. The court may determine that such pre-trial examination is unnecessary and proceed according to RSA 135:17-a, I. In all other cases, such pre-trial examination shall be completed within 45 days in the case of a person being held at a county correctional facility, otherwise 90 days after the date of the order for such examination, unless either party requests an extension of this period. For the purposes of this paragraph and RSA 135:17-a, III, "qualified" means board-eligible or board-certified in forensic psychiatry or psychology, or demonstrated competence and experience in completing court-ordered forensic criminal evaluations. A licensed out-of-state psychiatrist or psychologist who meets the definition of qualified may also conduct evaluations under this paragraph and RSA 135:17-a, III.
(b) In cases where the person is being held at a county correctional facility or the New Hampshire state prison, the facility may request a pre-trial examination of such person for the purpose of determining if the person is competent to stand trial. Such request shall be reviewed, and a decision rendered by the district or superior court before which he or she is to be tried.
(c) In cases where the person is incarcerated and a pre-trial examination has not been performed within 45 days of the court's order, or when the person is not incarcerated, performed within 90 days, the court shall, upon request of the person, order an evaluation by a qualified psychiatrist or psychologist. The court shall favorably consider a request that the psychiatrist or psychologist be treated as a defense expert who shall be compensated pursuant to RSA 604-A:6.
(d) In cases where the person is incarcerated and an examination has not been performed, the court before which he or she is to be tried shall review the person's bail status on a monthly basis. In cases where the person is not incarcerated, and the evaluation has not been completed within 90 days, the court shall schedule a status conference, and every 30 days thereafter.
(e) The court shall order that all medical, mental health, and educational records from the last 3 years be provided to the forensic examiner. Records dating further back in time shall be ordered to be provided as necessary. Records used by the forensic examiners will not be released to any parties in the matter without a judicial order. The court shall consider the person's privacy interest in the content of the records used to produce the forensic evaluation and the access-seeking party's need to review the records received to facilitate the forensic evaluation.
(f) Failure of the defendant to appear for and participate in the forensic evaluation, as ordered, or to provide records, as ordered, may constitute good cause for an extension of the time frames herein and may subject the defendant to contempt of court.
(g) In cases where a forensic evaluation as ordered pursuant to RSA 135:17, I (a) is unavailable, the court may inquire of the parties if a hearing pursuant to RSA 135:17-a, I is required either due to the issue of competency being contested, or the issue of restorability being contested. If the issues of competency and restorability are not contested due to agreement that the defendant is not competent and not restorable, the court may dismiss the charges without prejudice under RSA 135:17-a, I and shall proceed as provided in RSA 135:17-a, V.
II. The circuit or superior court may allow the parties to obtain separate competency evaluations if such request is made and the circumstances require it. The competency evaluations shall address:
(a) Whether the defendant suffers from a mental disease or defect; and
(b) Whether the defendant has a rational and factual understanding of the proceedings against him or her, and sufficient present ability to consult with and assist his or her lawyer on the case with a reasonable degree of rational understanding.
III. If the qualified psychiatrist or psychologist concludes that the defendant is not competent to stand trial under the definition set forth in II(b), the evaluation shall include the qualified psychiatrist's or psychologist's findings as to whether there is a course of treatment which is reasonably likely to restore the defendant to competency.
Source. 1901, 21:1. 1911, 13:1. PL 11:13. RL 17:13. RSA 135:17. 1967, 132:4. 1969, 184:1. 1973, 532:28. 1975, 83:1. 1985, 337:12. 2000, 229:1. 2009, 263:1. 2010, 250:1, eff. Sept. 4, 2010. 2015, 249:3, 4, eff. Jan. 1, 2016, July 1, 2016 and Oct. 1, 2017. 2019, 120:1, eff. Aug. 20, 2019. 2024, 35:1, eff. Jan. 1, 2025.
Notes of Decisions
Cited in 21
cases (1 in the last 5 years), 1963–2025 · leading case: State v. Veale, 972 A.2d 1009 (N.H. 2009).
State v. Veale, 972 A.2d 1009 (N.H. 2009). “” RSA 135:17,1 (2005). RSA 135:17, II (2005) permits separate competency evaluations upon request of the parties.”
Sharris v. Commonwealth, 106 N.E.3d 661 (Mass. 2018). “460 ; N.H. Rev. Stat. Ann. § 135:17 -a ; N.J. Stat.”
State v. Briand, 547 A.2d 235 (N.H. 1988). “Ewing by filing pretrial motions requesting that an expert of its own choosing also evaluate Briand pursuant to RSA 135:17 (Supp. 1987). In response to the defendant’s objection, the superior court denied this motion, ruling: (1) that it lacked authority to order such an…”
State v. Osborne, 402 A.2d 493 (N.H. 1979). “In March 1977, the defendant was examined pursuant to RSA 135:17 by Dr. Hans Standow. The defendant later moved for a second psychiatric evaluation on the grounds that the State would challenge Dr.”
State v. Gagne, 523 A.2d 76 (N.H. 1986). “A review of the relevant statutory authority reveals that the district courts are statutorily powerless to order competency evaluations for defendants charged with misdemeanors, see RSA 135:17 (Supp. 1986), and further, no court has the authority to order competency evaluations…”
Novosel v. Helgemoe, 384 A.2d 124 (N.H. 1978). “RSA 135:17 (Supp. 1975) authorizes the superior court to order a pretrial psychiatric examination of a person indicted or bound over awaiting indictment “if a plea of insanity is made in [superior] court, or said court is notified by either party that there is a question as to…”
State v. Marchand, 48 A.3d 856 (N.H. 2012). “) For this and other reasons, the State argued that the defendant should be compelled to submit to examination by the State’s expert and that such would not violate his right against self-incrimination.”
In Re Sargent, 354 A.2d 404 (N.H. 1976). “Sargent was committed to the New Hampshire Hospital for observation pursuant to RSA 135:17 (1964). On June 8, 1965, the hospital certified that Sargent was mentally ill and lacked the requisite mental competence for criminal responsibility.”
Kanteles v. Wheelock, 439 F. Supp. 505 (D.N.H. 1977). “Despite the presence of NH RSA 135:17 (Supp.1975), which provides for commitment for psychiatric observation should the question of insanity be raised, 5 there was no such psychiatric obser *512 vation of the petitioner.”
State v. Demesmin, 992 A.2d 569 (N.H. 2010). “650, 653 (1988); see also RSA 135:17, II (Supp. 2009) (permitting separate competency evaluations upon request of the parties).”
State v. Healey, 210 A.2d 486 (N.H. 1965). “On June 22, 1964, at the request of the State, a Justice of the Superior Court ordered the defendant committed to the New Hampshire Hospital for observation as to his sanity under the provisions oí RSA 135:17. He was later discharged and a report made to the Court that he was…”
State v. Buchanan, 924 A.2d 422 (N.H. 2007). “” RSA 135:17, 11(b), III (2005). Under the terms of this statute, competency is not directly related to dangerousness or the ability to contract or manage one’s own affairs— requirements of the federal definition of “adjudicated as a mental defective.”
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