21-4623. Same; persons determined to be mentally retarded.
21-4623
21-4623. Same; persons determined to bementally retarded.(a) If, under K.S.A. 21-4624 and amendments thereto, the county or districtattorney has filed a notice of intent to request a separate sentencingproceeding to determine whether the defendant should be sentenced to death andthe defendant is convicted of the crime of capital murder, the defendant'scounsel or the warden of the correctional institution or sheriff having custodyof the defendant may request a determination by the court of whether thedefendant is mentally retarded. If the court determines that there is notsufficient reason to believe that the defendant is mentally retarded, the courtshall so find and the defendant shall be sentenced in accordance with K.S.A.21-4624 through 21-4627, 21-4629 and 21-4631 and amendments thereto. If thecourt determines that there is sufficient reason to believe that the defendantis mentally retarded, the court shall conduct a hearing to determine whetherthe defendant is mentally retarded.
(b) At the hearing, the court shall determine whether the defendant ismentally retarded. The court shall order a psychiatric or psychologicalexamination of the defendant. For that purpose, the court shall appoint twolicensed physicians or licensed psychologists, or one of each, qualified bytraining and practice to make such examination, to examine the defendant andreport their findings in writing to the judge within 10 days after the order ofexamination is issued. The defendant shall have the right to present evidenceand cross-examine any witnesses at the hearing. No statement made by thedefendant in the course of any examination provided for by this section,whether or not the defendant consents to the examination, shall be admitted inevidence against the defendant in any criminal proceeding.
(c) If, at the conclusion of a hearing pursuant to this section, the courtdetermines that the defendant is not mentally retarded, the defendant shall besentenced in accordance with K.S.A. 21-4624 through 21-4627, 21-4629 and21-4631 and amendments thereto.
(d) If, at the conclusion of a hearing pursuant to this section, the courtdetermines that the defendant is mentally retarded, the court shall sentencethe defendant as otherwise provided by law, and no sentence of death or lifewithout the possibility of parole shall be imposed hereunder.
(e) As used in this section, "mentally retarded" means having significantlysubaverage general intellectual functioning, as defined by K.S.A. 76-12b01 andamendments thereto, to an extent which substantially impairs one's capacity toappreciate the criminality of one's conduct or to conform one's conduct to therequirements of law.
History: L. 1990, ch. 99, § 3;L. 1994, ch. 252, § 3;L. 2004, ch. 102, § 2; July 1.