Special Rules

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming


Alabama

ID/D specific rules: Alabama has a section of its code entitled “Mentally Retarded Defendants – governs procedure in cases where defendant has I/DD (or the issue of D having I/DD is brought up)

§ 15-24-2: Defines “mentally retarded person” as “a person with significant subaverage general intellectual functioning resulting in or associated with concurrent impairments in adaptive behavior and manifested during the developmental period, as measured by appropriate standardized testing instruments” 

§ 15-24-3: Either the defendant or the state may file a verified affidavit with the court to establish that the defendant is a person who has been identified as “mentally retarded” and has received or is receiving services through the Department of Mental Health and Mental Retardation or other recognized organization 

§ 15-24-4: The affidavit may be used to make decisions about place of detention, bail hearings, and ultimate outcome of the case 

§ 15-24-5: procedure if determined to be “mentally retarded”: If the defendant is determined by the court to be mentally retarded, the judge may: (1) Consider the information submitted in determining the need for pretrial release along with appropriate conditions; or (2) Order that the defendant, if he is not released, be accorded placement consistent with his special status so as to better protect him during this period of pretrial confinement. 

Alaska

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Arizona

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Arkansas

Police Training: Police officers are required to have training on dealing with individuals with disabilities, including: dynamics of relating to a person with disabilities, interview techniques, available supportive services, and pro-arrest guidelines and drawbacks of dual arrest and practices to promote the safety of law enforcement officers. Ark. Code § 12-9-116. 

Inmates with Disability: Inmates must get medical evaluation upon intake and physician must limit work assignment as required. Ark. Code § 12-29-403

California

Special precautions will be taken in cases of child molestation, domestic abuse, etc. if the victim is disabled or a minor to comfort and support the witness and to protect him or her from coercion, intimidation, or undue influence as a witness. These precautions may include: taking periodic breaks from the person’s testimony, removal of judicial robes, and relocation to a more comfortable area for testimony. Cal. Penal Code § 868.8

Special jury instruction: (if requested by either party) if disabled individual is a witness (sample of the instruction: “Although, because of his or her level of cognitive development, a person with a developmental disability, or cognitive, mental, or communication impairment may perform differently as a witness, that does not mean that a person with a developmental disability, or cognitive, mental, or communication impairment is any more or less credible a witness than another witness. You should not discount or distrust the testimony of a person with a developmental disability, or cognitive, mental, or communication impairment solely because he or she is a person with a developmental disability, or cognitive, mental, or communication impairment.”). Cal. Penal Code § 1127g

Provides the court with discretion to modify court procedures, as a reasonable accommodation, to ensure that adults and children with disabilities who have been victims of an alleged sexual or otherwise specified offense are able to participate effectively in criminal proceedings – including removal of judicial robes, video testimony, frequent breaks, etc. Cal. Penal Code § 1347.543 

Colorado

Testimony: If a witness is twelve years old or younger or I/DD their testimony may be taken in another room and broadcast via television. Co. Rev. Stat. Ann. § 16-10-402

Hearsay: In sex crime cases, an out of court statement by a victim with I/DD  (which is otherwise inadmissible hearsay) if the statement describes the offense and meets certain additional requirements (it is found to be reliable, the witness has been cross examined previously or testifies) – special jury instruction to weigh statement. Co. Rev. Stat. Ann. § 13-25-129.5.

Connecticut

Diversionary program: There is a pre-trial diversionary program for people with “psychiatric disabilities” which is defined as “a mental or emotional condition, other than solely substance abuse, that (A) has substantial adverse effects on the defendant’s ability to function, and (B)  requires care and treatment” – it seems that those with I/DD fit this definition. Conn. Gen. Stat. § 54-56l

Delaware

In all criminal proceedings involving a victim or witness with a cognitive disability, the court and the prosecution shall take appropriate action to ensure a prompt trial in order to minimize the length of time the victim or witness must endure the stress of the victim's or witness's involvement in the proceedings. 11 Del. Code § 9423.  

Protections for witnesses/victims with “cognitive disabilities:”A victim or witness with a cognitive disability is entitled to an explanation, in language the victim or witness understands, of all legal proceedings in which the victim or witness is to be involved. A victim or witness with a cognitive disability is entitled to be accompanied, in all proceedings, by a "friend'' or other person in whom the victim or witness trusts, which person shall be permitted to advise the judge, when appropriate and as a friend of the court, regarding the person with a cognitive disability and that person's ability to understand proceedings and questions.A victim or witness with a cognitive disability is entitled to information about, and referrals to, appropriate social services and programs to assist the victim or witness, and the victim's or witness's family, in coping with the emotional impact of the crime. 11 Del. Code § 9424.   

"Cognitive disability'' means a developmental disability that substantially impairs an individual's cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as nonorganic brain disorders commonly called functional disorders. "Cognitive disability'' also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation. 11 Del. Code § 9422

Florida

Protects child and sexual abuse victims under age 16 or with I/DD – limits the number of interviews conducted. Fla. Stat. § 914.16

Upon motion, the court may order anything necessary to protect those with I/DD  that are a victim or witness in any judicial proceeding or other official proceeding from severe emotional or mental harm due to the presence of the defendant if the victim or witness is required to testify in open court – the court may limit how many times the witness is questioned, may order that the questions be submitted prior to questioning, or order that a witness be accompanied by his or her registered service dog, for example. Fla. Stat. § 92.55

The court must appoint an advocate to represent a person who has an intellectual disability in any criminal proceeding if the person is a victim of or witness to abuse or neglect, a victim of a sexual offense, or a witness to a sexual offense committed against a minor or person who has an intellectual disability. The court may appoint an advocate in any other criminal proceeding in which such person is involved as a victim or a witness. The advocate explains things to the witness/ victim, assists the witness/ victim and their family with coping, and advises the judge as needed. Fla. Stat. § 914.17

If a victim with I/DD is testifying about a sex offense, the courtroom is cleared other than the parties, attorneys, officers of the court, journalists, and immediate family of the parties. Fla. Stat. § 918.16

Georgia

Mental Health Court: Georgia’s mental health court accepts individuals with I/DD if they meet the other requirements of the program. Ga. Code § 15-1-16

Hawaii

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Idaho

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Illinois

Special courtroom accommodations: Appointment of experts qualified to assist a defendant who because of a disability is unable to understand the proceedings or communicate with his or her attorney. The case may proceed to trial only if the court determines that such provisions or assistance compensate for a defendant's disabilities so as to render the defendant fit. 725 ILCS 5/104-22

In sex crime cases, the judge may order that a witness/ victim with I/DD testify outside of the courtroom and then show it in the courtroom via closed circuit TV. Only the prosecutor, defense attorney, judge, operator of the equipment, and any person that the judge believes will benefit the wellbeing of the witness. 725 ILCS 5/106B-5

Hearsay: An out of court statement may be admissible as evidence if the witness is testifying about abuse, neglect, etc. and has a disability; the court must find the out of court statement reliable (if the witness is unavailable to be in court to authenticate the statement, there must be some corroborating evidence). 725 ILCS 5/115-10.3

Indiana

Children under 14 or 14-18 with a disability may have their testimony videotaped and admitted into evidence. IC § 31-34-13-2

Iowa

The court may allow a witness with I/DD to videotape testimony. Iowa Code § 915.38

Kansas

A task force was created to investigate programs for offenders who may be incompetent to stand trial but do not meet the criteria for involuntary commitment. Kan. Stat. Ann. § 22-3306

Kentucky

Good time: Sex offenders can earn good time for completing a sex offender treatment program, but the law is not applicable to offenders with intellectual disabilities. Ken. Rev. Stat. § 197.045

Prior to trial, the court may have a hearing (upon motion of defendant) to determine if a defendant is “mentally retarded”. Ken. Rev. Stat. § 532.135

Definition of mentally retarded for purposes of related statutes (KRS 532.135 and 532.140) – “A defendant with significant subaverage intellectual functioning existing concurrently with substantial deficits in adaptive behavior and manifested during the developmental period… Significantly subaverage general intellectual functioning is defined as an intelligence quotient (IQ) of 70 or below. Ken. Rev. Stat. § 532.130.  

Law enforcement training: All search and rescue courses must include at least 30 minutes of training on behavior of those with developmental disabilities or traumatic brain damage. Ken. Rev. Stat. § 39F.220

Louisiana

Videotaped testimony is admissible for testimony of “protected person” as long as certain conditions are met. LSA-R.S. 15:440.5

Law enforcement training: Law enforcement must be trained on how to interact with individuals with mental illness or developmental disabilities. LSA-R.S. 40:2405.5

Maine

Hearsay: An out of court statement by someone with a developmental disability is admissible if it describes a sexual act, the court finds that it will promote the wellbeing of the witness, and the defense has the ability to cross examine the witness. 15 M.R.S.A. 1205

Maryland

Law enforcement training: Law enforcement receives education on interacting with disabled populations. Md. Code, Public Safety, 3-207

Massachusetts

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Michigan

Speedy trial if the victim is individual with a disability that inhibits the individual's ability to attend court or participate in the proceedings. Mich. Comp. Laws § 780.759

Minnesota

Law enforcement training: training provided to help law enforcement identify bias crimes, including those motivated by disability. M.S.A. § 626.8451

Mississippi

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Missouri

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Montana

Hearsay: an out of court statement by a witness with a developmental disability is admissible if testifying regarding a sexual assault or act of violence (as a victim or witness); the court must make factual findings regarding the witness’ disability and the reliability of their statement. MCA § 46-16-221

Nebraska

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Nevada

Juveniles: Juveniles with I/DD in the family court system must have a report created and an evaluation to determine correct placement. N.R.S. 62E.160

New Hampshire

Juveniles with an intellectual disability cannot waive their right to an attorney. N.H. Rev. Stat. § 169-B:12

New Jersey

Law enforcement training: all police officers must undergo training on the risks associated with autism, intellectual and developmental disabilities and appropriate recognition and response techniques. N.J.S.A. 52:17B-71.9

New Mexico

Witnesses with “mental retardation”: the court may order the use of one of the alternative procedures for determining competency to testify or for taking the testimony of the witness with mental retardation, provided that the court finds, by a preponderance of the evidence, that the witness is likely, as a result of submitting to usual procedures for determining competency or as a result of testifying in open court, to suffer unreasonable and unnecessary mental or emotional harm; or to suffer a temporary loss of or regression in cognitive or behavioral functioning or communicative abilities such that his ability to testify will be significantly impaired. NM Stat. § 38-6-8

Law enforcement training:  A minimum of forty hours of crisis management, including crisis intervention, confrontation de-escalation practicum and proper interaction with persons with mental impairments training, shall be included in the curriculum of each basic law enforcement training class. "Mental impairment" includes a mental illness, developmental disability, posttraumatic stress disorder, dual diagnosis, autism, youth in crisis and traumatic brain injury. NM Stat. § 29-7-7.5

New York

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North Carolina

Witnesses: A person with a developmental disability or a person with mental retardation who is competent to testify may testify by remote testimony in a prosecution of a person charged with violating a criminal law of this State if the court determines by clear and convincing evidence that the witness would suffer serious emotional distress from testifying in the presence of the defendant and that the ability of the witness to communicate with the trier of fact would be impaired by testifying in the presence of the defendant; there must be a hearing and fact finding by the court. N.C. Gen. Stat. § 15A-1225.2

North Dakota

Witnesses: A person with a developmental disability who is a material or prosecuting witness in a criminal proceeding involving a sex offense may, at the discretion of the district court, have the witness' interests represented by a guardian ad litem at all stages of the proceedings arising from the violation. NDCC 12.1-20-16

Trial length: In a criminal proceeding in which a disabled adult or vulnerable elderly adult is a victim, the court and state's attorney must take appropriate action to ensure a speedy trial to minimize the length of time the victim must endure the stress of involvement in the proceedings. NDCC 12.1-31-07.2

Ohio

Notification: If a person is charged in a complaint, indictment, or information with any crime or specified delinquent act or with any other violation of law, and if the case involves a victim that the prosecutor in the case knows is a mentally retarded person or developmentally disabled, the prosecutor in the case must send written notice of the charges to the department of developmental disabilities. Ohio Rev. Code § 2930.061

Witnesses: In cases of a sex offense or an offense of violence and in which an alleged victim of the violation or offense was a mentally retarded or developmentally disabled person, the judge of the court in which the prosecution is being conducted, upon motion of an attorney for the prosecution, shall order that the testimony of the mentally retarded or developmentally disabled victim be taken by deposition. The prosecution also may request that the deposition be videotaped. Ohio Rev. Code § 2945.482

Witnesses:  the prosecutor may admit videotaped preliminary hearing testimony of the developmentally disabled victim as evidence at the trial, in lieu of the developmentally disabled victim appearing as a witness and testifying at trial, if certain conditions are met and defendant had an opportunity to cross examine. Ohio Rev. Code § 2945.491

Oklahoma

Mental Health Courts may be established to explore alternatives to incarceration for mentally ill or developmentally disabled. 22 Okl. Stat. Ann. § 472

Oregon

Law enforcement training: Police must be trained to investigate bias crimes, including those motivated by disability. O.R.S § 181.642

A confession alone is sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed if the victim of the crime is a vulnerable person (definition includes a person with a developmental disability); there must be a hearing. O.R.S. § 136.427

Hearsay: out of court statement admissible if the victim is elderly, a child, or has a developmental disability – if conditions are met. “Developmental disability” means any disability attributable to mental retardation, autism, cerebral palsy, epilepsy or other disabling neurological condition that requires training or support similar to that required by persons with mental retardation, if either of the following apply: (a) The disability originates before 22 years of age, or if the disability is attributable to mental retardation the condition is manifested before the 18 years of age, the disability can be expected to continue indefinitely, and the disability constitutes a substantial handicap to the ability of the person to function in society and (b) The disability results in a significant subaverage general intellectual functioning with concurrent deficits in adaptive behavior that are manifested during the developmental period. O.R.S. § 40.460

Pennsylvania

Competence to testify: A person is incompetent to testify if the court finds that because of a mental condition or immaturity the person: (1) is, or was, at any relevant time, incapable of perceiving accurately; (2) is unable to express himself or herself so as to be understood either directly or through an interpreter; (3) has an impaired memory; or (4) does not sufficiently understand the duty to tell the truth. Pa. Rule Evi. 601

Rhode Island

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South Carolina

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South Dakota

Hearsay: A statement made by a child under the age of thirteen, or by a child thirteen years of age or older who is developmentally disabled, describing any act of sexual contact or rape performed with or on the child by another, or describing any act of physical abuse or neglect of the child by another, or any act of physical abuse or neglect of another child observed by the child making the statement, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant if certain conditions are met. SDCL § 19-19-806.1

Tennessee

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Texas

Witnesses in delinquency trials: In certain circumstances, if a victim has I/DD, their out of court statement may be admissible. Tex. Fam. Code § 54.031

Utah

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Vermont

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Virginia

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Washington

Representation of witnesses: A victim who is incapacitated or otherwise incompetent shall be represented by a parent or present legal guardian, or if none exists, by a representative designated by the prosecuting attorney without court appointment or legal guardianship proceedings. Wash. Rev. Code § 7.69.040

Accommodations: “Dependent persons” (includes I/DD) are afforded particular rights including: having language explained to them, allowing advocate to be present in court, etc. Wash. Rev. Code § 7.69B.020. http://app.leg.wa.gov/RCW/default.aspx?cite=7.69B.020

Witnesses: The court may allow a dependent person’s testimony to be videotaped if the moving party shows that it is likely that the dependent person will be unavailable to testify at a subsequent trial. The court's finding shall be based upon, at a minimum, recommendations from the dependent person's physician or any other person having direct contact with the dependent person and whose recommendations are based on specific behavioral indicators exhibited by the dependent person. Wash. Rev. Code § 7.69B.030. http://app.leg.wa.gov/RCW/default.aspx?cite=7.69B.030

West Virginia

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Wisconsin

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Wyoming

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