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;
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