23A-27A-22. Mental incompetence of defendant--Notice to Governor, secretary of corrections, and sentencing court.

If a defendant confined under sentence of death does not appear to be mentally competent to be executed, the warden having custody of the defendant shall notify the Governor, the secretary of corrections, and the sentencing court.

Source: SL 1939, ch 135, § 6; SDC Supp 1960, § 34.37A06; SDCL § 23-49-9; SL 1979, ch 160, § 24; SL 2002, ch 135, § 2; SL 2008, ch 117, § 9.



SDLRC - Codified Law 23A-27A-22 - Mental incompetence of defendant--Notice to Governor, secretary of corrections, and sentencing court.

23A-27A-22.1. Hearings and examinations regarding mental competence of defendant--Change in circumstances.

If the warden notifies the sentencing court that a defendant under a sentence of death does not appear to be mentally competent to be executed, or if the prosecuting attorney or the defense attorney moves for a determination of whether the defendant is mentally competent to be executed, and the sentencing court determines that there is a substantial threshold showing of incompetence to be executed, the sentencing court shall conduct hearings and order mental examinations pursuant to this section and §§ 23A-27A-22.2 to 23A-27A-22.5, inclusive. Prior to the date of the hearing, the court may order that a psychiatric examination of the defendant be conducted pursuant to § 23A-27A-22.2, and that a psychiatric report be filed with the court, pursuant to § 23A-27A-22.3. The state has the burden of proving the mental competence of the defendant by a preponderance of the evidence. A defendant is mentally competent to be executed if the defendant is aware of the impending execution and the reason for it. If the defendant has previously been determined to be competent to be executed under this chapter and there is a subsequent motion to the sentencing court that the defendant no longer appears to be mentally competent to be executed, there shall be a prima facie showing of a substantial change in circumstances raising a significant question of the defendant's competence to be executed before the sentencing court conducts any further hearing.

Source: SL 2008, ch 117, § 10.



SDLRC - Codified Law 23A-27A-22 - Mental incompetence of defendant--Notice to Governor, secretary of corrections, and sentencing court.

23A-27A-22.2. Psychiatric examination.

Any psychiatric examination ordered pursuant to § 23A-27A-22.1 shall be conducted by a licensed or certified psychiatrist, or, if the court finds it appropriate, by more than one such psychiatrist. Each psychiatrist shall be designated by the court. For the purposes of a psychiatric examination ordered pursuant to § 23A-27A-22.1, the defendant shall remain confined under the physical custody of the Department of Corrections.

Source: SL 2008, ch 117, § 11.



SDLRC - Codified Law 23A-27A-22 - Mental incompetence of defendant--Notice to Governor, secretary of corrections, and sentencing court.

23A-27A-22.3. Psychiatric report.

Any psychiatric report ordered pursuant to § 23A-27A-22.1 shall be prepared by the psychiatrist designated to conduct the psychiatric examination, shall be filed with the court with copies provided to the counsel for the defendant and to the prosecuting attorney, and shall include:

(1)    The defendant's history and present symptoms;

(2)    A description of the psychiatric, psychological, and medical tests that were employed and their results; and

(3)    The psychiatrist's determination whether the defendant is mentally competent to be executed as defined in § 23A-27A-22.1.

Source: SL 2008, ch 117, § 12.



SDLRC - Codified Law 23A-27A-22 - Mental incompetence of defendant--Notice to Governor, secretary of corrections, and sentencing court.

23A-27A-22.4. Video tape record of psychiatric examination.

Upon written request of defense counsel, the court may order a video tape record made of the defendant's psychiatric examination conducted pursuant to § 23A-27A-22.1. Either the prosecuting attorney or the defendant's counsel may request a copy of the video tape record. The video tape record shall be submitted to the court along with the psychiatric report, pursuant to § 23A-27A-22.3.

Source: SL 2008, ch 117, § 13.



SDLRC - Codified Law 23A-27A-22 - Mental incompetence of defendant--Notice to Governor, secretary of corrections, and sentencing court.

23A-27A-22.5. Counsel for defendant--Rights afforded at hearing.

At any hearing ordered pursuant to § 23A-27A-22.1, the defendant shall be represented by counsel and, if financially unable to obtain adequate representation, counsel shall be appointed for the defendant. The defendant shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on the defendant's behalf, and to confront and cross-examine witnesses who appear at the hearing.

Source: SL 2008, ch 117, § 14.