2010 Arkansas Code
Title 5 - Criminal Offenses
Subtitle 1 - General Provisions
Chapter 2 - Principles of Criminal Liability
Subchapter 3 - Mental Disease or Defect
§ 5-2-305 - Mental health examination of defendant.

5-2-305. Mental health examination of defendant.

(a) (1) Subject to the provisions of 5-2-304 and 5-2-311, the court shall immediately suspend any further proceedings in a prosecution if:

(A) A defendant charged in circuit court files notice that he or she intends to rely upon the defense of mental disease or defect;

(B) There is reason to believe that the mental disease or defect of the defendant will or has become an issue in the cause;

(C) A defendant charged in circuit court files notice that he or she will put in issue his or her fitness to proceed; or

(D) There is reason to doubt the defendant's fitness to proceed.

(2) (A) If a trial jury has been impaneled, the court may retain the jury or declare a mistrial and discharge the jury.

(B) A discharge of the trial jury is not a bar to further prosecution.

(b) (1) Upon suspension of further proceedings in the prosecution, the court shall enter an order:

(A) Directing that the defendant undergo examination and observation by one (1) or more qualified psychiatrists or qualified psychologists;

(B) Appointing one (1) or more qualified psychiatrists not practicing within the Arkansas State Hospital to make an examination and report on the mental condition of the defendant; or

(C) Directing the Director of the Division of Behavioral Health of the Department of Human Services to determine who will examine and report upon the mental condition of the defendant.

(2) The Director of the Division of Behavioral Health of the Department of Human Services or his or her designee shall determine the location of the forensic examination.

(3) The forensic examination shall be for a period not exceeding thirty (30) days or such longer period as the Director of the Division of Behavioral Health of the Department of Human Services or his or her designee determines to be necessary for the purpose of the forensic examination.

(4) (A) (i) A uniform evaluation order shall be developed by the Administrative Office of the Courts, the office of the Prosecutor Coordinator, and the Department of Human Services.

(ii) At a minimum the uniform evaluation order shall contain the:

(a) Defendant's name, age, gender, and race;

(b) Charges pending against the defendant;

(c) Defendant's attorney's name and address;

(d) Defendant's custody status;

(e) Case number; and

(f) Case number and a unique identifying number on the incident reporting form as required by the Arkansas Crime Information Center.

(iii) The uniform evaluation order shall be utilized any time that a defendant is ordered to be examined by the court pursuant to this section and a copy of the uniform evaluation order shall be forwarded to the Director of the Department of Human Services or his or her designee.

(iv) No forensic examination shall be conducted without using the uniform evaluation order.

(B) (i) The Division of Behavioral Health of the Department of Human Services shall maintain a database of all examinations of defendants performed pursuant to this chapter.

(ii) (a) At a minimum the database shall contain the information on the uniform evaluation order as provided in subdivision (b)(4)(A)(ii) of this section.

(b) Additionally, the database shall track insanity acquittees and their conditional release.

(c) Upon completion of a forensic examination pursuant to subsection (b) of this section, the court may enter an order providing for further examination and may order the defendant committed to the Arkansas State Hospital or other appropriate facility for further examination and observation if the court determines that commitment and further examination and observation are warranted.

(d) (1) A report of a forensic examination shall include the following:

(A) A description of the nature of the forensic examination;

(B) A substantiated diagnosis in the terminology of the American Psychiatric Association's current edition of the Diagnostic and Statistical Manual;

(C) An opinion on whether the defendant lacks the capacity to understand the proceedings against him or her and to assist effectively in his or her own defense as a consequence of mental disease or defect;

(D) A description of any evidence that the defendant is feigning a sign or symptom of mental disease or defect;

(E) (i) When directed by the court, an opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired at the time of the conduct alleged.

(ii) An opinion under subdivision (d)(1)(E)(i) of this section shall also include a description of the reasoning used by the examiner to support the opinion; and

(F) (i) When directed by the court, an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged.

(ii) An opinion under subdivision (d)(1)(F)(i) of this section shall also include a description of the reasoning used by the examiner to support the opinion.

(2) In addition to the information required in subdivision (d)(1) of this section, the report of the forensic examination shall include a separate explanation of:

(A) The sign or symptom of mental disease or defect that led to the opinion on the presence of mental disease or defect; and

(B) The evidence that supports the opinion of the examiner on the capacity of the defendant to understand the proceedings against him or her and the defendant's capacity to assist in his or her own defense.

(e) If a forensic examination cannot be conducted because of the unwillingness of the defendant to participate in the forensic examination, the report of the forensic examination shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant is the result of mental disease or defect.

(f) (1) A person designated to perform a forensic examination shall file the report of the forensic examination with the clerk of the court, and the clerk of the court shall mail a copy to the defense attorney and a copy to the prosecuting attorney.

(2) Upon entry of an order by a circuit court, a copy of the report of the forensic examination concerning a defendant shall be provided to the circuit court by the person designated to perform the forensic examination.

(g) (1) Notwithstanding the provision of any statute enacted prior to January 1, 1976, any existing medical or pertinent record in the custody of a public agency shall be made available to the examiner and counsel for inspection and copying.

(2) The court shall require the prosecuting attorney to provide to the examiner any information relevant to the forensic examination, including, but not limited to:

(A) The name and address of any attorney involved in the matter;

(B) Information about the alleged offense; and

(C) Any information about the defendant's background that is deemed relevant to the forensic examination, including the criminal history of the defendant.

(3) The court may require the attorney for the defendant to provide any available information relevant to the forensic examination, including, but not limited to, a:

(A) Psychiatric record;

(B) Medical record; or

(C) Record pertaining to treatment of the defendant for substance or alcohol abuse.

(h) (1) The cost of a forensic examination other than an examiner retained by the defendant shall be borne by the state.

(2) (A) If the Director of the Division of Behavioral Health of the Department of Human Services admits the defendant to the Arkansas State Hospital for a forensic examination, room and board costs shall also be borne by the state so long as the Arkansas State Hospital has actual physical custody of the defendant for the evaluation, observation, or treatment of the defendant.

(B) (i) However, when a forensic examination of the defendant has been completed, the county from which the defendant had been sent for the forensic examination shall procure the defendant within three (3) working days from the Arkansas State Hospital or from a designated receiving facility or program or other facility where the forensic examination was performed.

(ii) If the county fails to procure the defendant within this three-day period, the county shall bear any room or board costs on the fourth and subsequent days.

(i) A person under commitment and supervision of the Department of Correction who is a defendant charged in circuit court shall not undergo an examination or observation conducted by a psychiatrist or other mental health employee of the Department of Correction to determine the mental condition of the defendant.