Presumptions - Jury trial - Presence of accused - Witnesses - Instructions. A. A hearing to determine the competency of the person whose competency is in question shall be held within thirty (30) days after the qualified forensic examiner or examiners have made the determination required in Section 1175.3 of this title. In such cases where intellectual disability may be involved, the Office of Public Guardian shall have standing to participate in any stage of the proceedings as deemed necessary by the Office. B. The court, at the hearing, shall determine by a preponderance of the evidence if the person is incompetent. Such determination shall include consideration of all reports prepared by the qualified forensic examiner or examiners; provided, however, in any case where intellectual disability may be involved, the recommendations of examiners set forth in subparagraph b of paragraph 1 of subsection D of Section 1175.3 of this title shall be considered by the court. The person shall be presumed to be competent for the purposes of the allocation of the burden of proof and burden of going forward with the evidence. If the court deems
it necessary, or if the person alleged to be a person requiring treatment, or any relative, friend, or any person with whom he may reside, or at whose house the person may be, shall so demand, the court shall schedule the hearing on the application as a jury trial to be held within seventy-two (72) hours of the request, excluding weekends and legal holidays, or within as much additional time as is requested by the attorney of the person whose competency is in question, upon good cause shown. The jury shall be composed of six (6) persons having the qualifications required of jurors in courts of record, summoned to determine the questions of the person’s competency and need for treatment. Whenever a jury is required, the court shall proceed to the selection of such jury in the manner as provided by law and such jury shall determine the questions of the competency and need for treatment of the person whose competency is in question. The jurors shall receive fees for attendance and mileage as are allowed by law. C. The person whose competency is in question shall have the right to be present at the hearing on the petition unless it is made to appear to the court that the presence of the person makes it impossible to conduct the hearing in a reasonable manner. The court may not decide in advance of the hearing, solely on the basis of the certificate of the examining doctor or doctors, that the person whose competency is in question should not be allowed to appear. It shall be made to appear to the court based on clear and convincing evidence that alternatives to exclusion were attempted before the court renders the person’s removal for that purpose or the person’s appearance at such hearing improper and unsafe. D. All witnesses shall be subject to cross-examination in the same manner as is provided by law. If so stipulated by counsel for a person whose competency is in question, the district attorney and the court, testimony may be given by telephone or other electronic transmitting device approved by the court. No statement, admission or confession made by the person whose competency is in question obtained during the examination for competency may be used for any purpose except for proceedings under Section 1175.1 et seq. of this title. No such statement, admission or confession may be used against such person in any criminal action whether pending at the time the hearing is held or filed against such person at any later time, directly, indirectly or in any manner or form. E. If the question of competency is submitted to a jury, the court shall instruct the jury as to the law regarding competency, and the findings they are to make. If the trial of the question is to the court, the court shall make the required findings. Added by Laws 1980, c. 336, § 4, emerg. eff. June 25, 1980. Amended by Laws 1985, c. 190, § 1, eff. Nov. 1, 1985; Laws 1991, c. 178, § 3, eff. Sept. 1, 1991; Laws 1996, c. 161, § 2, eff. Nov. 1, 1996;
Laws 2000, c. 421, § 5, eff. Nov. 1, 2000; Laws 2024, c. 73, § 3, eff. Nov. 1, 2024.
Notes of Decisions
Cited in
56
cases (
1 in the last 5 years), 1986–2021 · leading case:
Hung Thanh Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997).
Hung Thanh Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997).
· cites it 7× “Scott interpreted 22 O.S.1981, § 1175.4(A), which stated: After the doctor, doctors or technicians have made the determination required in *545 Section 3 of this act, a hearing on the competency of the person shall be held.”
Van White v. State, 1999 OK CR 10 (Okla. Crim. App. 1999).
· cites it 6× “¶ 54 Appellant goes on to claim that the use of this same evidence, the testimony of Portnoff and Garcia, violated his privilege against self-incrimination and 22 O.S.1981, § 1175.4. The United States Supreme Court has held that "the State's use of information obtained during a…”
Marshall v. State, 1998 OK CR 30 (Okla. Crim. App. 1998).
· cites it 8× “This proposition fails. COMPETENCY TO STAND TRIAL ¶ 13 In his fourth assignment of error, Petitioner challenges his competency to stand trial.”
Ochoa v. State, 1998 OK CR 41 (Okla. Crim. App. 1998).
· cites it 4× “The statute, 22 O.S.1991, § 1175.4(B), provided that a defendant in a criminal prosecution is presumed competent to stand trial unless he proves his incompetence by clear and convincing evidence.”
Cooper v. State, 889 P.2d 293 (Okla. Crim. App. 1995).
· cites it 4× “court finding merit to the application must order an examination by doctors or appropriate technicians, who shall examine the defendant and determine if he can appreciate the nature of the charges; if he is capable of assisting his attorney; and other questions concerning the…”
Hatch v. State, 924 P.2d 284 (Okla. Crim. App. 1996).
· cites it 4× “In Cooper, the United States Supreme Court held that 22 O.S.1991, § 1175.4(B) [6] violates an accused's right to due process.”
Mooney v. State, 1999 OK CR 34 (Okla. Crim. App. 1999).
· cites it 4× “The right to a jury trial on the issue of competency only attaches after the initial application for determination of competency has been granted and a competency examination has been conducted.”
Long v. State, 883 P.2d 167 (Okla. Crim. App. 1994).
· cites it 4× “The statutory language of 22 O.S.Supp. 1985, § 1175.4(D) is plain and clear: No statement, admission or confession made by the person whose competency is in question obtained during his examination for competency may be used for any purpose except for proceedings under this act.”
Boltz v. State, 806 P.2d 1117 (Okla. Crim. App. 1991).
· cites it 2× “Clearly, error occurred in this case when the trial court failed to conduct a post-examination competency hearing pursuant to 22 O.S.Supp.1988, § 1175.4(A). Therefore, this Court issued a unanimous order remanding this case to the district court to make findings concerning the…”
Foster v. Ward, 182 F.3d 1177 (10th Cir. 1999).
· cites it 2× “1986) (applying Okla. Stat. tit. 22, § 1175.4 (A) (1981)).”
Tate v. State, 896 P.2d 1182 (Okla. Crim. App. 1995).
· cites it 3× “The findings in this regard were forwarded to this Court, and we permitted additional time for both parties to file supplemental briefs on this matter.”
— Okla. Stat. tit. 22, § 1175.4(A) — 7 cases
Hung Thanh Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997).
“Scott interpreted 22 O.S.1981, § 1175.4(A), which stated: After the doctor, doctors or technicians have made the determination required in *545 Section 3 of this act, a hearing on the competency of the person shall be held.”
Boltz v. State, 806 P.2d 1117 (Okla. Crim. App. 1991).
“Clearly, error occurred in this case when the trial court failed to conduct a post-examination competency hearing pursuant to 22 O.S.Supp.1988, § 1175.4(A). Therefore, this Court issued a unanimous order remanding this case to the district court to make findings concerning the…”
Marshall v. State, 1998 OK CR 30 (Okla. Crim. App. 1998).
“This proposition fails. COMPETENCY TO STAND TRIAL ¶ 13 In his fourth assignment of error, Petitioner challenges his competency to stand trial.”
— Okla. Stat. tit. 22, § 1175.4(B) — 22 cases
Ochoa v. State, 1998 OK CR 41 (Okla. Crim. App. 1998).
“The statute, 22 O.S.1991, § 1175.4(B), provided that a defendant in a criminal prosecution is presumed competent to stand trial unless he proves his incompetence by clear and convincing evidence.”
Hatch v. State, 924 P.2d 284 (Okla. Crim. App. 1996).
“In Cooper, the United States Supreme Court held that 22 O.S.1991, § 1175.4(B) [6] violates an accused's right to due process.”
— Okla. Stat. tit. 22, § 1175.4(C) — 1 case
Van White v. State, 1999 OK CR 10 (Okla. Crim. App. 1999).
“¶ 54 Appellant goes on to claim that the use of this same evidence, the testimony of Portnoff and Garcia, violated his privilege against self-incrimination and 22 O.S.1981, § 1175.4. The United States Supreme Court has held that "the State's use of information obtained during a…”
— Okla. Stat. tit. 22, § 1175.4(D) — 2 cases
Long v. State, 883 P.2d 167 (Okla. Crim. App. 1994).
“The statutory language of 22 O.S.Supp. 1985, § 1175.4(D) is plain and clear: No statement, admission or confession made by the person whose competency is in question obtained during his examination for competency may be used for any purpose except for proceedings under this act.”
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