Physical or mental disease, disorder, or defect excluding fitness to proceed

COMMENTARY ON §704-403 The section sets forth the universally accepted position in Anglo-American law that a defendant cannot be proceeded against (with the exception of being charged) unless the defendant has the capacity to understand the proceedings against the defendant and assist in the defendant's own defense. The Code deliberately avoids terms such as "the then present insanity"[1] and focuses on those factors which call for a suspension of the proceedings: (1) lack of capacity to understand the proceedings, or (2) lack of capacity to assist in the defense. Previous Hawaii law is substantially in accord with this section except that the statutory language used vague, unfocused phrases such as "the then present insanity or mental irresponsibility of the accused," and "the then existing... mental irresponsibility."[2] However, in actual application the trial courts have focused on the capacity of the defendant to understand the proceedings and to assist in the defense.[3] Law Journals and Reviews Fitness to Proceed: Compassion or Prejudice? II HBJ, no. 13, at 135 (1998). Case Notes Facts did not support a finding that petitioner was mentally incompetent at relevant times. 79 H. 118 (App.), 899 P.2d 401 (1995). Cited: 60 H. 17, 586 P.2d 1028 (1978); 134 H. 308, 340 P.3d 440 (2014). __________ §704-403 Commentary: 1. See H.R.S. §§711-91 and 711-92. 2. Id. 3. See State v. Wong, 47 Haw. 361, 365, 389 P.2d 439, 442 (1964).