cdTOCtest

Upon the filing of such a report, the court may permit the
following:

1. Examination without cooperation;


2. Appointment of a different psychiatrist or
   psychologist; or


3. Commitment of the defendant for observation for
   no more than 30 days if good cause is shown; or


4. Exclusion or limitation of the testimony of the defense
   psychiatrist or psychologist. Id.

III. DETERMINATION OF THE FITNESS TO

PROCEED; EFFECT OF FINDING UNFIT-

NESS; PROCEEDINGS IF FITNESS IS RE-

GAINED; AND POST-COMMITMENT HEAR-

INGS (N.J.S.A. 2C:4-6)

A. Determination of Fitness to Proceed

The determination of a defendant’s fitness to proceed
must be decided by the court. N.J.S.A. 2C:4-6a; see also
State v. Moya, 329 N.J. Super. 499, 506 (App. Div. 2000)
(it is the court and not the experts who ultimately
determine competency and the likelihood of danger to
self or society). Review of such determinations are highly
deferential. Id.

If neither the prosecutor, nor the defense attorney,
contests the findings of the report, the court may make
the determination on the basis of the report. N.J.S.A.
2C:4-6a. However, if the findings are contested, or there
is no report, the court must hold a hearing. Id.

B. Finding of Unfitness

If the court determines that the defendant lacks the
fitness to proceed, the proceedings against the defendant
shall be suspended. N.J.S.A. 2C:4-6b. The court may
then commit the defendant to the custody of the
Department of Human Services for placement in an
institution if the defendant is a danger to himself or
others, or it shall proceed to determine whether
placement in an outpatient setting or release is
appropriate. Id. However, the defendant may not be
placed in an institution beyond which it can be
determined as to whether there is a substantial
probability that the defendant could regain his
competence within the foreseeable future. Id.; see also

Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845,

1858 (1992).

If a defendant is found unfit to proceed, the court

may resolve legal objections to the prosecution which

may be fairly resolved prior to trial and without the

personal participation of the defendant. N.J.S.A. 2C:4-

6f.

C. Finding of Fitness

If the court determines that the defendant is fit to

proceed, but suffers from a mental illness which does not

require institutionalization, the court shall order the

defendant to be provided appropriate treatment in jail or

in prison. N.J.S.A. 2C:4-6b.

Even though a defendant may be competent to stand

trial, the defendant may not have the mental capacity to

knowingly waive his right to counsel, and thus, such a

determination should not ordinarily result in allowing a

mentally ill defendant to conduct his own defense. State

v. Ehrenberg, 284 N.J. Super. 309, 314, 316 (Law Div.

1994). In Ehrenberg, the court held that even if a

defendant is found competent to stand trial, a mentally

ill defendant may still be incompetent to waive certain

rights, such as an insanity or diminished capacity

defense, and therefore, in that case, the municipal court

should have appointed counsel to safeguard such rights.

Id. at 315-16.

D. Failure to Regain Fitness

The indefinite commitment of a defendant based

solely on his incompetency to stand trial violates due

process. Jackson v. Indiana, 406 U.S. at 731. In Jackson,

the United States Supreme Court stated that “due

process requires that the nature and duration of the

commitment bear some reasonable relation to the

purpose for which the individual is committed.” Id. at

738. Pursuant to Jackson, a defendant who is committed
     solely due to his incapacity to stand trial, “cannot be held
     more than the reasonable period of time necessary to
     determine whether there is a substantial probability that
     he will attain that capacity in the foreseeable future.” Id.
     If it is determined that the defendant will not regain
     competency, the State must either commence the
     customary civil proceeding for indefinite commitment or
     release the defendant. Id.

In New Jersey, if the defendant has not regained his

fitness to proceed within three months, the court must

hold a hearing to determine whether the charges against