UNIFORM LAW COMMISSIONERS' MODEL INSANITY DEFENSE AND POST-TRIAL DISPOSITION ACT. Drafted by the

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1 UNIFORM LAW COMMISSIONERS' MODEL INSANITY DEFENSE AND POST-TRIAL DISPOSITION ACT Drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its ANNUAL CONFERENCE MEETING IN ITS NINETY-THIRD YEAR IN KEYSTONE, COLORADO JULY 27 - AUGUST 3, 1984 With Prefatory Note and s

2 DRAFTING COMMITTEE ON MODEL INSANITY DEFENSE AND POST-TRIAL DISPOSITION ACT CURTIS R. REITZ, University of Pennsylvania, School of Law, 3400 Chestnut Street, Philadelphia, PA 19104, Chairman BARRY H. EVENCHICK, 2 West Northfield Road, Livingston, NJ MICHAEL GETTY, Room 306, Criminal Court Building, 26th & California, Chicago, IL NORMAN KRIVOSHA, Suite 2214, State Capitol, Lincoln, NE SAMUEL J. ROBERTS, Supreme Court, Courthouse, Erie, PA WILLIAM B. TURNER, 2nd Floor, 477 Pacific Avenue, San Francisco, CA LEWIS V. VAFIADES, One Merchants Plaza, Bangor, ME RICHARD L. BAZELON, 17th Floor, Two Penn Center Plaza, Philadelphia, PA 19102, Reporter CARLYLE C. RING, JR., 710 Ring Building, Washington, DC 20036, President (Member Ex Officio) PHILLIP CARROLL, 120 East Fourth Street, Little Rock, AR 72201, Chairman, Executive Committee WILLIAM J. PIERCE, University of Michigan, School of Law, Ann Arbor, MI 48109, Executive Director ROBERT C. ROBINSON, 12 Portland Pier, P.O. Box 568, Portland, ME 04112, Chairman, Division D (Member Ex Officio) REVIEW COMMITTEE MAYNARD E. PIRSIG, William Mitchell College of Law, 875 Summit Avenue, St. Paul, MN 55105, Chairman FRANCIS J. PAVETTI, Court House Square Building, New London, CT ELWAINE F. POMEROY, 1415 Topeka Avenue, Topeka, KS NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 645 North Michigan Avenue, Suite 510 Chicago, Illinois

3 UNIFORM MODEL INSANITY DEFENSE AND POST-TRIAL DISPOSITION ACT PREFATORY NOTE History The conclusion that some insane persons are not criminally responsible originated as a judge-made facet of criminal law. The modern starting point is the famous M'Naghten Case, 8 Eng. Rep. 718 (1843), from which the M'Naghten Rule derived. In recent years, as criminal law has been reexamined and codified, some provisions on the insanity defense were incorporated into statutes. A major impetus was the American Law Institute's Model Penal Code (1962), which formulated a statement of the responsibility of persons suffering from mental disease or defect. The ALI's formulation was widely adopted by legislatures or by courts. Within the past decade, a number of legislatures added a provision allowing a finding that an accused person was guilty but mentally ill. Public debate about the insanity defense intensified after John Hinckley was found not guilty of attempted assassination of President Reagan and related offenses. The House of Delegates of the American Bar Association resolved in February 1983 that (i) there should be a defense of nonresponsibility for crime which focuses solely on whether the defendant, as a result of mental disease or defect, was unable to appreciate the wrongfulness of that conduct at the time of the offense charged, and (ii) the prosecution should have the burden of proof by a preponderance of the evidence. The House of Delegates opposed enactment of statutes allowing a verdict of guilty but mentally ill. Other major organizations have put forward position statements on criminal responsibility and related matters. Included are the Board of Trustees of the American Psychiatric Association (December 1982); the National Commission on the Insanity Defense, an independent body established by the National Mental Health Association (March 1983); the House of Delegates of the American Medical Association (December 1983); and the Council of Representatives of the American Psychological Association (January 1984); the ABA Standing Committee on Criminal Justice Standards (Criminal Justice Mental Health Standards, adopted by the House of Delegates, July 1984). The Drafting Committee began its work on the Model Act in Throughout its work, the Drafting Committee has been assisted by the participation of liaison representatives of four major organizations concerned with this matter. Dr. Richard G. Lonsdorf, Associate Professor of Psychiatry and Law at the University of Pennsylvania Law School, served as the representative of the National Commission on the Insanity Defense. Dr. Loren H. Roth, Professor of Psychiatry at the University of Pittsburgh, provided the views of the American Psychiatric Association. The liaison representative of the American Psychological Association was Dr. Bruce Bennett of Northbrook, Illinois. Dean Steven Goldberg, University of Minnesota Law School, provided liaison with the American Bar Association Standing Committee on Criminal Justice Standards. 3

4 The work of the Conference was greatly advanced through the invaluable contributions of these individuals. Copies of the Model Act were submitted to many organizations with special interest in criminal law and criminal law enforcement. Included were the National Association of Attorneys General, the National District Attorneys Association, the National Association of Criminal Defense Lawyers, Inc., the National Legal Aid and Defender Association, and the International Association of Chiefs of Police. Each organization was invited to express its views on the Act. The Model Act was adopted by the National Conference of Commissioners on Uniform State Laws at its annual meeting in Keystone, Colorado, in August Scope of the Act Present law on nonresponsibility for crime by reason of mental illness or defect is in flux. Considerable legislative and rule-making activity has been taking place in the states and in the United States. State and federal courts have been engaged in reexamination of common law doctrines. Respected organizations have promulgated recent statements of policy on these questions. Scholars have been making major contributions to the academic literature in this field. One product of this considerable activity is deeper appreciation of the complex nature of the questions arising when a defendant's mental condition at the time of an alleged offense becomes an issue to be resolved at trial. Generally, an inquiry into mental condition requires utilization of experts who can testify meaningfully only after a one-on-one interview of the defendant. Numerous problems arise in providing for effective pretrial examination by experts for both the prosecution and the defense. Special safeguards are needed to assure against prosecution overreaching of defendants in court-ordered examinations, a concern that invokes sensitive areas of constitutional law as applied in criminal prosecutions. Traditional criminal codes fail to provide adequately, if at all, for the post-verdict disposition of persons found not criminally responsible by reason of mental illness or defect. In addition to resolving the manifold problems of defining and implementing an insanity defense, criminal law is adapting to the growing recognition that a defendant's mental condition at the time of alleged criminal conduct may be very significant in determining whether that defendant acted with the state of mind required to commit the offense charged (mens rea). With few exceptions for crimes of strict liability, crimes are defined in terms that require a prosecutor to prove that an accused person had a particular state of mind. Persons suffering from mental illness or defect may lack capacity to form the relevant state of mind, or their mental condition may be probative on whether the relevant state of mind actually existed at the time of the conduct in question. From the beginning of its work, the Drafting Committee concluded that the Act should address both the insanity defense and the issues of mens rea that arise when a defendant's mental condition is brought into issue. 4

5 The Uniform Law Commissioners' Model Act addressed to these questions will be useful to legislators and rule makers who seek to frame the positive law of their respective jurisdictions. This is not a subject on which uniformity among states is a principal objective. The purposes of the Act can be substantially achieved even though it is not adopted in its entirety by every state. The Model Act calls attention to the issues that must be addressed and provides a means of dealing with those questions in an appropriate way that represents the best judgment of the Conference. Concerning Adoption The provisions in this Model Act include both substantive and procedural matters. Articles III, IV and V, in particular, are largely procedural. In the event that procedural provisions in this Model Act are properly the subject of rules of court rather than statute under state law, these provisions should be proposed as additions or changes to the rules. 5

6 UNIFORM LAW COMMISSIONERS' MODEL INSANITY DEFENSE AND POST-TRIAL DISPOSITION ACT ARTICLE I SCOPE SECTION 101. SCOPE OF ACT. This [Act] governs the defense of absence of criminal responsibility and provides for postverdict disposition of an individual found not criminally responsible. It also governs the obtaining of evidence through post-arrest examination of a defendant by a mental-health professional on the issue of state of mind as an element of the crime charged and the use of that evidence. Criminal law deals with defendants who are mentally ill or defective in a number of ways. This Act addresses in a comprehensive manner the substantive and procedural aspects of what is often called the defense of insanity. "Insanity" is a word without adequate definition. Without using the phrase, "defense of insanity," this Act is drafted to articulate a defense of absence of criminal responsibility as a result of mental illness or defect. In addition to absence of responsibility for criminal conduct, this Act encompasses portions of the mens rea element of criminal law, as mental impairment at the time of the crime charged may also be relevant to the issue of whether a defendant's conduct (actus reus) was accompanied by the state of mind required by the law's definition of the elements of an offense. The Act does not address issues of mens rea comprehensively, but provides the criteria and procedures for obtaining and subsequently using evidence from post-offense examination of the defendant on this issue. The Act does not contain provisions regarding competency to stand trial. Mentally ill or defective persons may be unable to understand the criminal proceedings and consult with counsel. All American jurisdictions hold such persons to be incompetent. Competency to stand trial is neither an element of an offense nor a defense to a criminal charge. It looks to the mental condition of an accused at the time of trial rather than at the time of the conduct on which a 6

7 criminal charge is based. On competency to stand trial, see ABA Criminal Justice Standards, Chapter 7, Part IV (2d ed., Supp. 1985) (forthcoming). The decision to include within this Act issues of absence of responsibility and certain issues regarding mens rea flows from the fact that both of these issues focus on the mental condition of an accused person at the time of the conduct in question. Before trial, when the legal issues to be tried have not yet been determined by counsel, the inquiry directed toward ascertainment of facts regarding a defendant's past mental condition does not distinguish between absence of an element of the offense or absence of criminal responsibility. Subsequent use of the results of pretrial examinations as evidence at trial presents problems common to both legal issues. For efficiency and clarity in administration of criminal law, the two issues ought to be dealt with together. On a deeper level, it is questionable whether the two issues can be satisfactorily kept separate. Prior to the 19th century, what would now be treated as the defense of insanity was considered a branch of the law of mens rea. Dissatisfaction with the narrow recognition of mental illness or defect as an adjunct to mens rea, coupled with development of greater knowledge about the nature of mental abnormalities, may have led to splitting off the insanity defense as a separate issue. Debate among scholars and lawmakers over the decision never ceased, and a current movement toward merger has gained strong adherents. See, e.g., N. Morris, Madness and the Criminal Law, (1982); H. Edgar, Mens Rea, 3 Encyclopedia of Crime and Justice, (1983). For a contrary view, see Report To The House of Delegates by the Standing Committee On Association Standards For Criminal Justice of the American Bar Association and the Commission On The Mentally Retarded Of The American Bar Association, 1983; Bonnie, The Moral Basis of the Insanity Defense, 69 A.B.A.J. 194, (1983); Stone, The Insanity Defense On Trial, Hospital and Community Psychiatry (August 1982). Whatever the outcome of the movement to integrate the defense of absence of criminal responsibility into the law of mens rea, it is eminently sensible to frame this Model Act to encompass the overlapping areas of both issues. These subjects have been treated together in Rule 12.2 of the Federal Rules of Criminal Procedure (effective 1975), in Chapter 7 of ABA Criminal Justice Standards (2d ed., Supp (forthcoming); see also Model Penal Code 4.01 and 4.02 (1962). ARTICLE II DEFENSE OF ABSENCE OF CRIMINAL RESPONSIBILITY SECTION 201. STANDARD FOR ABSENCE OF CRIMINAL RESPONSIBILITY. 7

8 An individual is not criminally responsible if at the time of the alleged offense, as a result of mental illness or defect, the individual was substantially unable to appreciate the wrongfulness of the alleged conduct. The defense of absence of responsibility reflects the tenet of our criminal law that an adjudication of guilt includes a judgment of moral wrongdoing. The defense of absence of responsibility recognizes that persons who are out of touch with reality are incapable of being guilty in a moral sense. As noted in the Report To The House Of Delegates submitted by the Standing Committee on Association Standards For Criminal Justice of the American Bar Association and by the Commission On the Mentally Retarded Of The American Bar Association, "[t]he abolitionist approach as embodied within the mens rea limitation would prevent the exercise of humane moral judgment -- and it is that exercise which has distinguished our criminal law heritage." See also Report of the National Commission On The Insanity Defense, pages 9-12, Several jurisdictions within the past several years have enacted statutes that create a new verdict of "guilty but mentally ill." In most of these jurisdictions, this form of verdict is merely an added form of disposition and does not supersede the defense of absence of responsibility. These statutes confuse the issue of responsibility and are entirely unnecessary in order to provide a basis for appropriate post-trial disposition. See the Report to the House of Delegates, supra, pages 8-9 and Report Of The National Commission On The Insanity Defense, pages The standard set forth in this section conforms with the resolution adopted by the ABA House of Delegates on February 9, 1983, which stated: The ABA approves, in principle, a defense of nonresponsibility for crime which focuses solely on whether the defendant as a result of mental disease or defect was unable to appreciate the wrongfulness of his or her conduct at the time of the offense charged. By adopting this resolution, the House of Delegates accepted the recommendations for a strictly cognitive test of criminal responsibility made in the Report by the ABA Standing Committee on Association Standards for Criminal Justice and the Commission on the Mentally Disabled. The report notes: This policy position is based on two underlying propositions; first that the "appreciation of wrongfulness" formula is sufficiently broad to take into account the morally significant effects of severe mental disorder; and second, that any independent volitional inquiry involves a significant risk of "moral mistakes" in the adjudication of criminal responsibility. The preservation of the insanity defense and its definition in solely cognitive terms, as well as the rejection of the "guilty but mentally ill" verdict, have also received the official support of 8

9 the American Psychiatric Association. See American Psychiatric Association Statement On The Insanity Defense, December, 1982, 140 Amer. J. Psychiatry 6 (1983). However, the National Commission On The Insanity Defense, sponsored by the National Mental Health Association, recommended both a cognitive and volitional definition for nonresponsibility but, unlike the ABA and this Model Act, recommended that the burden of proof be placed on the defendant. The standard in this section does away with testimony on "irresistible impulse" and other volitional or "control" aspects of expert testimony, and focuses instead on the extent to which a defendant could "appreciate" the wrongfulness of his conduct. At the same time, the word "appreciate" is intended to go substantially beyond simple intellectual awareness, and to "take into account all aspects of the defendant's mental and emotional condition." (Report to House of Delegates, page 4). Accordingly, expert witnesses have latitude to testify as to the affective dimensions of the defendant's mental state at the time of the crime charged. Ibid.; and see Bonnie, "Personality, Equality and Expertise: Renegotiating the Relationship Between Psychiatry and the Criminal Law," Bulletin American Academy of Psychiatry and the Law, vol. 12, No. 1, 1984, at page 16. Similarly, the term "wrongfulness" is intended to connote substantially more than "illegality." "Wrongfulness" denotes behavior which the actor understands is morally wrong, and therefore behavior which is blameworthy. Accordingly, the term underscores the moral basis of the insanity defense, i.e., "to preserve moral culpability as a fundamental premise for imputing guilt and imposing punishment." Report to House of Delegates, page 5; and see Bonnie, The Moral Basis Of The Insanity Defense, 69 A.B.A.J. 194, 197 (1983). SECTION 202. LIMITATION ON MENTAL ILLNESS OR DEFECT. For purposes of this [Act], neither repeated criminal or similar antisocial conduct nor impairment of mental condition caused primarily by voluntary use of alcoholic or psychoactive substances immediately before or contemporaneously with the criminal conduct charged in itself constitutes mental illness or defect at the time of the crime charged. Evidence of the conduct or impairment may be probative in conjunction with other evidence to establish mental illness or defect. Section 202 limits the kinds of mental condition on which a defense of absence of responsibility can be based. The conditions described in this section, either separately or together, do not, by themselves, constitute "mental illness or defect." However, these conditions may be relevant to the issue of whether a defendant suffered from mental illness or defect at the time of the alleged crime. "Psychoactive substances," a phrase widely used among mental-health 9

10 professionals, means any drug with an effect on mental processes, including stimulants, depressants or tranquilizers. For a recent decision considering the manner and extent to which drug addiction may be relevant to "mental illness or defect," see United States v. Lyons, 731 F.2d 243 (5th Cir. 1984). ARTICLE III AUTHORIZATION FOR EXPERTS AND EXAMINATION SECTION 301. COURT AUTHORIZATION OF STATE-FUNDED MENTAL- HEALTH SERVICES FOR CERTAIN DEFENDANTS. A defendant who is unable to pay for the services of a mental-health professional, and to whom those services are not otherwise available, may apply to the court for assistance. Upon a showing of a likely need for examination on the question of absence of criminal responsibility or absence of requisite state of mind as a result of the defendant's mental condition, the court shall authorize reasonable expenditures from public funds for the defendant's retention of the services of one or more mental-health professionals. Upon request by the defendant, the application and the proceedings on the application must be ex parte and in camera, but any order under this section authorizing expenditures must be made part of the public record. The provisions of this Act concerning examination of a defendant apply to the kind of expert examination which seeks to elicit communications from the defendant that are relevant to an opinion as to the defendant's mental condition at the time of the crime charged. Other types of expert inquiry or examination are not addressed in this Act, and are left to existing rules and practice in each jurisdiction, except for the provisions of Article V, which govern reports, exchange of information, and notice concerning all expert witnesses on the issue of the defendant's mental condition at the time of the crime charged. Section 301 gives to an indigent defendant the means to retain a mental-health professional upon a showing of a basis for the request. The pleading of facts demonstrating absence of criminal responsibility satisfies this standard. The Supreme Court has recently granted certiorari 10

11 in a capital case in which the state court refused defendant's request for authority to retain a psychiatrist at public expense. Ake v. Oklahoma, U.S., 104 S. Ct (1984). The section also provides that upon request by a defendant the application and proceedings thereon shall be ex parte and in camera. This provision is intended to prevent premature disclosure of information to a prosecutor to the prejudice of the defendant. See ABA Standards For Criminal Justice (Second Edition). Institution of the procedure for obtaining the services of mental health professionals is not restricted to any particular time during the pre-trial period. These services would ordinarily be sought early in the pre-trial period, but a defendant may perceive need of services of a mentalhealth professional as trial preparations proceed or may determine that defendant, although examined by one mental-health professional, requires additional examination by the same or another professional. Accordingly, no time limit on applications is appropriate. The qualifications of a "mental-health professional" are not specified. Minimum educational and training requirements should be set by state or by local courts, taking into account the availability of such professionals within the jurisdiction. Standards should require appropriate basic education and training in the area of testimony, as well as forensic training and experience. A psychiatrist or a professional psychologist with a doctoral degree in psychology are examples of persons who would satisfy the basic educational and training criteria for certain testimony concerning mental condition at the time of the alleged crime, but other persons may also be found qualified. See ABA Criminal Justice Standard (2d ed., Supp. 1985) (forthcoming). In some jurisdictions expert mental-health services are available to indigent defendants through standing collateral services of public agencies such as public defenders. In these jurisdictions court authorization for expert service to perform an evaluation of a particular defendant may not be required. The "not otherwise available" phrase in the first sentence of Section 301 recognizes the general availability of these services in some jurisdictions. SECTION 302. NOTICE OF DEFENSE OF ABSENCE OF CRIMINAL RESPONSIBILITY. (a) If the defendant intends to assert the defense of absence of criminal responsibility, the defendant shall notify the prosecutor in writing and file a copy of the notice with the court. The notice must indicate whether the defendant intends to introduce at trial evidence obtained from examination of the defendant by a mental-health professional after the time of the alleged offense. 11

12 (b) The defendant shall file the notice within the time prescribed for pretrial motions or at such earlier or later time as the court directs. For cause shown, the court may allow late filing of the notice and grant additional time to the parties to prepare for trial or may make other appropriate orders. (c) If the defendant fails to give notice in accordance with this section, absence of criminal responsibility may not be asserted as a defense. Section 302 places two separate requirements of notice on a defendant. Each has a separate and distinct purpose. The first requirement, notice of intention to raise the defense of absence of responsibility, is imposed because responsibility is not an issue to be tried unless raised by the defendant. In the absence of such notice, the prosecution does not need to prepare to address this issue. The second notice requirement, notice of intent to call at trial an expert witness who examined defendant after the time of the offense charged, is imposed so that a determination can be made whether the prosecution is entitled to a court order authorizing examination of the defendant by a mental-health professional retained by the prosecution. This two-part notice requirement follows from the conclusion that a defendant may put absence of responsibility in issue without use of any expert testimony or with the use of experts whose testimony is not based upon examination of defendant or is based upon an examination conducted prior to the crime charged, possibly in a therapeutic setting. The Act treats the intention by a defendant to introduce evidence obtained from post-offense examination of defendant as the basis for the prosecution's having similar access to the defendant. This access through compelled examination is not barred by the privilege against self-incrimination, as the introduction of evidence based upon examination by defendant's expert means that the defendant is effectively testifying through the expert. See Blaisdell v. Commonwealth, 364 N.E.2d 191 (Mass. 1977). At the same time, compelled examination is required in the interest of the fairness when a defendant intends to introduce evidence obtained from examination. See Estelle v. Smith, 451 U.S. 454, 465 (1980). The same balancing of Fifth Amendment concerns and fairness is reflected in the evidentiary provisions of the Act. The Act limits the prosecution's right to use evidence obtained from compelled examinations to rebuttal of like evidence introduced by a defendant and to impeachment of the defendant's testimony as to mental condition at the time of the crime charged. See Section 601. See also ABA Standards For Criminal Justice 7-3.4(b), and (Second Edition). The precise timing of the notice may depend to some extent on procedural rules of the individual states. However, a defendant should be allowed a sufficient period to be examined by the defendant's expert before being required to give notice. After notice has been given, the 12

13 prosecution's examination should not be unduly delayed, as the quality of an examination may depend in some measure on its proximity in time to the crime charged. Section 302 follows the view that the notice of a defense of absence of responsibility is a function of discovery and evidentiary considerations, and not a matter to be resolved necessarily at arraignment. No purpose is served by authorizing or requiring a plea of absence of responsibility in a defendant's formal response to a criminal charge. There is no provision in the Act for the court on its own motion or for the prosecution to interpose the defense of absence of criminal responsibility on behalf of a defendant. The decision to raise the defense of absence of criminal responsibility may only be made by the defendant. SECTION 303. NOTICE REGARDING EXPERT TESTIMONY ON LACK OF STATE OF MIND AS ELEMENT OF CRIME CHARGED. (a) If the defendant intends to introduce at trial evidence obtained from examination of the defendant by a mental-health professional after the time of the alleged offense to show that defendant lacked the state of mind required for the crime charged, the defendant shall notify the prosecutor in writing and file a copy of the notice with the court. (b) The defendant shall file the notice within the time prescribed for pretrial motions or at such earlier or later time as the court directs. For cause shown, the court may allow late filing of the notice and grant additional time to the parties to prepare for trial or may make other appropriate orders. Section 303 is based on the premise that, on the issue of state of mind as an element of the crime charged, a defendant may present evidence obtained from examination of the defendant by a mental-health professional. See Federal Rule of Criminal Procedure 12.2 and ABA Criminal Justice Standard (2d ed., Supp. 1985) (forthcoming). There is no occasion for a notice requirement on a defendant of intention to raise the issue of state of mind as an element of the crime charged. This is an issue on which the prosecution bears the burden of going forward as well as the ultimate burden of proof beyond a reasonable doubt in all cases, not only those in which a defendant elects to produce some evidence addressed to the issue. 13

14 Section 303 does impose on a defendant a requirement to give notice of intent to introduce evidence obtained from post-offense examination of the defendant by a mental-health professional on the issue of state of mind as an element of the crime charged. The purpose of this requirement is to afford the prosecution the opportunity to have the defendant examined on this issue by a mental-health professional retained by the prosecution. Absent a defendant's notice of intent to introduce this kind of evidence, compelled examination of the defendant would create a serious risk of violation of the right against self-incrimination. See Estelle v. Smith, 451 U.S. 454 (1980); Blaisdell v. Commonwealth, 364 N.E. 2d 191 (Mass. 1977); ABA Criminal Justice Standards 7-3.4, and (2d ed., Supp. 1985) (forthcoming). The notice provisions of this Act, Sections 302 and 303, parallel Rule 12.2(a) and (b) of the Federal Rules of Criminal Procedure. SECTION 304. EXAMINATION AT REQUEST OF PROSECUTOR. (a) If the defendant has given notice under Section 302 or 303 of intent to introduce evidence obtained by a mental-health professional from examination of the defendant after the time of the alleged offense, the court, upon application by the prosecutor and after opportunity for response by the defendant, shall order that the defendant be examined by one or more mentalhealth professionals retained by the prosecutor. The court shall include in the order provisions as to the time, place, and conditions of the examination. (b) If the parties agree to examination of the defendant by a mental-health professional retained by the prosecutor without order of the court, Sections 401, 402, 403, 501, 502, 503, 504, 601 and 602 apply to the examination. Section 304 requires a defendant to undergo examination by a mental-health professional retained by the prosecution if the defendant gives notice of intent to introduce evidence obtained from post-offense examination of the defendant by a mental-health professional on the issue of responsibility or state of mind as an element of the crime charged. The use of the evidence obtained is governed by Section 601. The language "one or more mental-health professionals" is the identical language contained in Section 301. The purpose is to provide general parity in treatment between a defendant and the prosecution with respect to the number and types of experts. 14

15 The present practice concerning compelled examination varies widely. In many states examination can be compelled and evidence from an examination used whenever a defendant has raised the defense of absence of responsibility, without regard to whether the defendant intends to introduce evidence based upon examination of defendant by defendant's expert. On the other hand, at least one state, Pennsylvania, provides that a defendant has the right not to participate in such an examination, and protects this right by the presence of defense counsel at a court-ordered examination. See Commonwealth v. Pomponi, 447 Pa. 154, 284 A.2d 708 (1971), now codified in 50 Purdon's Statutes 7402(e). The standard set forth in Sections 304 and 401 of the Act reconciles the competing policies and interests on the issue of compelled examination of a defendant and the use of evidence obtained thereby. This section requires that a defendant be given notice of the application for examination by the prosecution, and an opportunity to respond, but does not require a hearing. The court has the discretion to hold a hearing on the application, and presumably will exercise this discretion based upon the nature of the motion and response. The court may also specify conditions for the examination. These arrangements may include confinement of a defendant only to the extent required for the examination. Otherwise, custody of the defendant prior to trial is governed by the same considerations and procedures applicable to all defendants. Subsection (b) encourages agreement by the parties to a proposed examination of the defendant by a mental-health professional retained by the prosecution. The safeguards that apply to a court-ordered examination apply as well to any examination agreed to by the defendant. ARTICLE IV CONDUCT OF EXAMINATION ORDERED AT REQUEST OF PROSECUTOR SECTION 401. EXPLANATION TO DEFENDANT. At the beginning of each examination conducted under Section 304, the mental-health professional shall inform the defendant that (i) the examination is being made at the request of the prosecutor, (ii) the purpose of the examination is to obtain information about the defendant's mental condition at the time of the alleged offense, and (iii) information obtained from the examination may be used at trial and, if the defendant is found not criminally responsible by 15

16 reason of mental illness or defect, in subsequent proceedings concerning commitment or other disposition. Section 401 assures notice to defense counsel as to time and place for the court-ordered examination and provides for a relatively simple form of explanation by the examiner to a defendant concerning the examination. In many cases in which examination is ordered the defendant will be confined in a mental-health facility or will otherwise be in contact with some mental-health professionals. Even though a defendant may have been informed by defense counsel that a court-ordered examination is imminent, the mental-health professional performing the examination should adequately identify himself or herself and the purpose of the examination. See ABA Criminal Justice Standard (2d ed., Supp. 1985) (forthcoming). SECTION 402. SCOPE OF EXAMINATION. An examination of the defendant conducted under Section 304 may consist of such interviewing, clinical evaluation, and psychological testing as the mental-health professional considers appropriate, within the limits of nonexperimental, generally accepted medical, psychiatric, or psychological practices. Section 402 gives a mental-health professional performing a court-ordered examination substantial discretion in how to conduct an examination, but provides that the conduct of the examination must conform to generally recognized and accepted practices in that profession. SECTION 403. RECORDING OF EXAMINATION. (a) An examination of the defendant conducted under Section 304 must be audiorecorded and, if ordered by the court, video-recorded. The manner of recording may be specified by rule or by court order in individual cases. (b) Within [7] days after completion of an examination conducted under Section 304, the mental-health professional conducting the examination shall deliver a copy of the recording 16

17 of the examination, under seal, to the court and a copy of the recording to the defendant. The recording may not be disclosed except in accordance with this [Act]. Section 403 provides that a court-ordered examination must be recorded. The mode of recording is left to the court. This provision reflects the importance of these private interviews in the trial of issues of a defendant's mental condition and the difficulty of cross-examination of an expert witness without knowledge as to what took place at an examination. In addition, recording affords protection against possible overreaching by a prosecution-retained mentalhealth professional and thereby permits vindication of a defendant's Fifth Amendment rights. Evidentiary use of recordings is restricted by Section 602. A defendant may be prejudiced by pre-trial disclosure of a recording to the prosecution. While the mental-health professional will report his or her findings to the prosecutor, and may include information incriminating of the defendant in that report, there is potential for greater intrusion into areas of constitutional concern if the prosecutor, a lawyer trained to seek evidence of guilt, is allowed to study the verbatim interrogation of defendant before trial. Because of the intentionally very limited uses of a recording in the courtroom, the prosecutor should not have access to the recording unless and until a defendant decides to make use of the recording as provided in Section 602. Therefore, disclosure to the prosecution is authorized only after defendant declares intention to make evidentiary use of the recording. See Section 602. Several courts have recognized the desirability of recording court-ordered examinations of a defendant. E.g., Thornton v. Corcoran, 407 F.2d 695, 702 (D.C. Cir. 1969); United States v. Driscoll, 399 F.2d 135, 138 (2d Cir. 1968); Houston v. Alaska, 602 F.2d 784, 796 (Alaska, 1979); Lessard v. Schmidt, 349 F. Supp. 1078, 1099 (E.D. Wis. 1972), vacated on other grounds, 414 U.S. 473 (1974); State v. Whitlow, 45 N.J. 3, 210 A.2d 763, (1965). In addition, the American Psychological Association has expressed its support for recording these examinations. Brief for Amicus Curiae American Psychological Association on Motion For Rehearing in United States v. Byers, No , D.C. Cir. (submitted October 13, 1981). See also, ABA Criminal Justice Standard 7-3.6(d) (2d ed., Supp. 1985) (forthcoming); United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984) (a plurality opinion (six judges) suggested that recording of examinations conducted by mental-health professionals was good practice, a dissenting opinion (four judges) would have held that recording was required to protect a defendant's right to effective assistance of counsel and privilege against compelled self-incrimination). The Model Act neither provides for nor precludes the presence of defense counsel at a courtordered examination. Although there is a split of authority among courts that have considered this issue, most have held that the presence of defense counsel at a court-ordered examination is not necessary or desirable. Courts upholding the right of defense counsel to attend have indicated that counsel's role is to observe and to prevent overreaching. See Lee v. County Court, 67 N.E. 2d 452 (N.Y. 1971), cert. denied, 404 U.S. 823 (1971); Houston v. Alaska, 602 P.2d 784, , n.23 (Alaska 1979). The defendant does not have a right to remain silent under the conditions which attach to a court-ordered examination under this Act. See Sections 302, 303, 17

18 601 and 602. Accordingly, recording of the examination is a substantially less intrusive means of accomplishing the objectives which would be served by the presence of counsel. See ABA Criminal Justice Standard (2d ed., Supp. 1985) (forthcoming). SECTION 404. CONSEQUENCE OF DELIBERATE FAILURE OF DEFENDANT TO COOPERATE. If the defendant without just cause deliberately fails to participate or to respond to questions in an examination conducted under Section 304, the prosecutor before trial may apply to the court for appropriate relief. The court may consider the recording of the examination as evidence on the application, but proceedings concerning the recording must be in camera and out of the presence of counsel. Section 404 gives a court the power to fashion appropriate relief in the event that a defendant willfully fails to participate or to respond to questions in a court-ordered examination. Evidentiary sanctions against a defendant as a result of court-ordered examination should only be considered in cases of willful nonresponsiveness. The recording made in accordance with Section 403 will be important evidence with respect to this determination. The relief appropriate when a defendant is found to have violated the court's order to submit to examination is not set forth specifically in the Act. The court must weight the facts and consider alternative remedial actions. The determination concerning possible sanctions depends on a number of factors, e.g., the degree of willfulness and the extent of nonresponsiveness, the availability of comparable evidence from other sources, and the type of testimony proferred by the defendant concerning mental condition at the time of the alleged crime. The objective is to protect the prosecution from the unfairness of being denied examination of the defendant by the prosecution's mental-health professional when the defendant may have been examined by a defense expert. While one possible sanction is to bar any testimony by the defense expert, a court should first consider less drastic measures. Exclusion of evidence favorable to a defendant inevitably gives rise to constitutional and criminal justice concerns. After a finding that a defendant has deliberately failed to participate or to respond to questions, reiteration of the court order may result in the defendant's submission to examination. Alternatively, a court should consider whether permitting the prosecutor to introduce at trial evidence of the defendant's obduracy would be sufficient to offset any unfairness. This evaluation must be made on a caseby-case basis. In no event should a court completely bar the defense of absence of responsibility as a sanction under this section. 18

19 Consideration of the recording of the examination under this section is in camera and out of the presence of counsel in order that the recording not be disclosed to the prosecution in advance of trial. In view of the examiner's knowledge of the examination, and defense counsel's access to the recording, this limitation should not adversely affect the proceeding. A sealed record of the in camera proceeding should be made for purposes of possible appeal. ARTICLE V EXCHANGE OF REPORTS AND DOCUMENTS BEFORE TRIAL SECTION 501. REPORTS BY MENTAL-HEALTH PROFESSIONALS AND EXPERT WITNESSES. A mental-health professional retained by the prosecutor and a mental-health professional whom the defendant intends to call to testify at trial shall prepare a written report concerning examination of the defendant and other pretrial inquiry by or under the supervision of the mental-health professional. Any other individual whom either party intends to call at trial as an expert witness on any aspect of defendant's mental condition shall prepare a written report. A report under this section must contain: (1) the specific issues addressed; (2) the identity of individuals interviewed and records or other information used; (3) the procedures, tests, and techniques used; (4) the date and time of examination of the defendant, the explanation concerning the examination given to the defendant, and the identity of each individual present during an examination; (5) the relevant information obtained and findings made; 19

20 (6) matters concerning which the mental-health professional was unable to obtain relevant information and the reasons therefor; and (7) the conclusions reached and the reasoning on which the conclusions were based. Section 501 pertains to written reports by experts on the mental condition of a defendant at the time of the crime charged. This section sets the standard as to when a written report must be prepared and the subjects which it must address. The section is related to Section 502, concerning exchange of reports, as the requirement for preparing a report is based on the entitlement of the adverse party to obtain the information required therein in order to prepare for trial. The scope of a report required by this section is not limited to the examination of a defendant. The grounds for evaluation relied upon by a mental-health professional may extend beyond the interview examination itself. Accordingly, other sources of information utilized by the mental-health professional should be identified. The section is not limited to experts who are mental-health professionals, but applies to all experts who have conducted an evaluation pertaining to the mental condition of a defendant at the time of the crime charged. The requirements of pre-trial notice and exchange of information apply to all of these experts. The list of essential elements of a report is intended to make the report fully informative so as to avoid surprise and to allow the adverse party to make trial preparations, including preparation for cross-examination of the expert. SECTION 502. EXCHANGE OF REPORTS AND PRODUCTION OF DOCUMENTS. Not less than [15] days before trial, the prosecutor shall furnish to the defendant reports prepared pursuant to Section 501, and the defendant shall furnish to the prosecutor reports by each mental-health professional or other expert on any aspect of the defendant's mental condition whom the defendant intends to call at trial. Upon application by either party and after hearing, the court may require production of documents prepared, completed, or used in the examination or inquiry by the mental-health professional or other expert. 20

21 Section 502, together with 503, addresses the availability of the expert reports and underlying documents to the adverse party, and the subsequent use of these materials. While the obligations and rights are generally reciprocal, the prosecution's pre-trial access to the reports and underlying documents prepared by or under the direction of a defendant's experts is limited to those experts whom the defendant intends to call, and the prosecutor's right to use the reports and documents at trial is limited to experts actually called to testify by the defendant. The attorney-client privilege of a defendant extends to consultation by defense counsel with the expert on the issue of the mental condition of the defendant at the time of the crime charged. United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975); United States ex. rel Edney v. Smith, 425 F. Supp (E.D. N.Y. 1976); Houston v. State, 602 P.2d 784 (Alaska 1979). Unless the expert testifies, any written report is within the privilege. No purpose is served by a similar limitation on the prosecutor's duty to produce the report of experts as the defendant is entitled in any event to exculpatory information obtained by the prosecutor. Brady v. Maryland, 373 U.S. 83 (1963). See ABA Standards For Criminal Justice 7-3.8(b) and (Second Edition); Federal Rule of Criminal Procedure 16. SECTION 503. USE OF REPORTS AT TRIAL. Use at trial of a report prepared by a mental-health professional or other expert is governed by the rules of evidence. A report of a mental-health professional or other expert furnished by defendant pursuant to Section 501 may not be used at trial unless the defendant has called the mental-health professional or other expert who prepared the report to testify. Section 503 provides for production of documents underlying an expert's report so that each party can review the basic data from which the expert's conclusions were drawn. Court review of the application for production assures judicial consideration of special problems, for example, the inclusion of incriminating statements concerning actus reus in documents sought by the prosecution. In the event of such problem, the court may consider excluding the affected documents from production or redacting portions thereof, or ordering bifurcation of the trial. The court may enter a protective order to prevent public disclosure of test materials commonly used by mental-health professionals, where the disclosure would compromise the future use of the tests. Article V does not apply to recordings of examinations, a matter governed by Sections 403, 404 and 602. SECTION 504. NOTICE OF EXPERT WITNESSES. 21

22 Not less than [20] days before trial, each party shall give written notice to the other of the name and qualifications of each mental-health professional or other individual the respective party intends to call as an expert witness at trial on the issue of absence of criminal responsibility or requisite state of mind as an element of the crime charged. For good cause shown, the court may permit later addition to or deletion from the list of individuals designated as expert witnesses. The requirement of advance notice of the identity and qualifications of expert witnesses on the issue of the defendant's mental condition at the time of the crime charged carries forward the principle of pre-trial exchange of information concerning expert witnesses in order to facilitate a more focussed and in-depth presentation of evidence at trial. ARTICLE VI USE OF INFORMATION OBTAINED FROM EXAMINATION ORDERED AT REQUEST OF PROSECUTOR SECTION 601. USE OF EVIDENCE OBTAINED FROM EXAMINATION. (a) Except as provided in subsection (b) and in Sections 404 and 907, information obtained as a result of examination of a defendant by a mental-health professional conducted under Section 304 is not admissible over objection of the defendant in any proceeding against the defendant. (b) Subject to the limitation in Section 602, information obtained from an examination of the defendant by a mental-health professional conducted under Section 304 is admissible at trial to rebut evidence introduced by the defendant obtained from an examination of the 22