2014 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.

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

(ii) After the notice of intent to raise the defense of not guilty for reason of mental disease or defect is filed, any party may petition the court for a criminal responsibility examination and opinion.

(iii) (a) It is not necessary for the petitioner to request a fitness-to-proceed examination if fitness to proceed does not appear to be an issue.

(b) An examiner shall not render an opinion or issue a report on criminal responsibility if the examiner believes that the defendant is not fit to proceed.

(c) In a case under subdivision (a)(1)(A)(iii)(b) of this section, the criminal responsibility examination shall be suspended and the court notified immediately that there is a question as to the defendant's fitness to proceed; or

(B) (i) Any party or the court raises the issue of the defendant's fitness to proceed.

(ii) The court shall order a fitness-to-proceed examination if it finds there is a reasonable suspicion that a defendant is not fit to proceed.

(2) (A) The fitness-to-proceed examination, and the criminal responsibility examination and request for an opinion on the defendant's criminal responsibility, are two distinctly different examinations.

(B) The fitness-to-proceed examination and the criminal responsibility examination may be done at the same time only if the defendant simultaneously raises the issue of the defendant's fitness to proceed and files notice that he or she intends to rely upon the defense of mental disease or defect.

(C) In all other cases the process is bifurcated.

(3) (A) A defendant shall not be found not guilty by reason of mental disease or defect in the absence of proof of a mental disease or defect.

(B) A court shall not order the Division of Behavioral Health Services of the Department of Human Services to conduct a criminal responsibility examination if a fitness-to-proceed examination has previously determined that the defendant does not have a mental disease or defect unless the requesting party can show reasonable cause to believe:

(i) There is evidence of a mental disease or defect that was not fully considered in the previous criminal responsibility examination; or

(ii) That the prior opinion that the defendant does not have a mental disease or defect was based on information or facts later shown to be false or unreliable.

(4) (A) If a trial jury has been impaneled and the court suspends proceedings under subdivision (a)(1) of this section, 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 Services 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 Services of the Department of Human Services or his or her designee shall determine the location of the examination.

(3) The examination shall be for a period not exceeding sixty (60) days or such longer period as the Director of the Division of Behavioral Health Services of the Department of Human Services or his or her designee determines to be necessary for the purpose of the examination.

(4) (A) (i) Two (2) distinctly different uniform evaluation orders shall be developed by the Administrative Office of the Courts, the office of the Prosecutor Coordinator, the Department of Human Services, and the Arkansas Public Defender Commission. One (1) uniform evaluation order shall be for a fitness-to-proceed examination and opinion and the other uniform evaluation order shall be for a criminal responsibility examination and opinion.

(ii) At a minimum the uniform examination orders 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;

(f) A unique identifying number on the incident reporting form as required by the Arkansas Crime Information Center; and

(g) The name of the requesting attorney.

(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 examination under this subchapter shall be conducted without using a uniform evaluation order.

(v) Fitness-to-proceed and criminal responsibility examination orders may be ordered at the same time in accordance with subdivision (a)(1) of this section, but they may not be combined into one (1) uniform evaluation order and shall be tracked separately by the division.

(B) (i) The division shall maintain a database of all examinations of defendants performed pursuant to this subchapter.

(ii) The database shall be maintained in a manner to enable it to generate reports and data compilations either with or without personal identifying information.

(iii) At a minimum the database shall contain:

(a) The information on the uniform evaluation order as provided in subdivision (b)(4)(A)(ii) of this section;

(b) The name of the judge who ordered the examination, if known;

(c) The name of the attorney who requested the examination, if known;

(d) The name of the examiner who conducted the examination;

(e) The result of the examination;

(f) If the defendant is found not fit to proceed, whether the defendant was restored to fitness to proceed; and

(g) If the defendant is found not guilty by reason of mental disease or defect, the defendant's progress through his or her commitment and conditional release.

(iv) The database should be designed in a manner that allows reports to be generated for the General Assembly, researchers, and the public to track the efficiency and effectiveness of the examination process and the restoration and treatment programs of the division without invading the privacy of individual defendants and patients.

(c) (1) Upon completion of an 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.

(2) When the defendant has previously been found fit to proceed, the court may order a second or subsequent examination to determine a defendant's fitness to proceed only if the court:

(A) Finds reasonable cause to believe that new or previously undiscovered evidence calls into question the factual, legal, or scientific basis of the opinion upon which the previous finding of fitness relied;

(B) Finds reasonable cause to believe that the defendant's mental condition has changed; or

(C) Sets forth in the order a factual or legal basis upon which to order another examination.

(d) (1) An examiner's report under this subchapter shall include:

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

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

(C) A specific description of the signs or symptoms of mental disease or defect if in the opinion of the examiner the defendant has a mental disease or defect; and

(D) A substantiated diagnosis in the terminology of the American Psychiatric Association's current edition of the Diagnostic and Statistical Manual of Mental Disorders.

(2) In addition to the information in subdivision (d)(1) of this section, a report of a fitness-to-proceed examination shall specifically include 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 and an explanation of the examiner's opinion and the basis of the opinion.

(3) In addition to the information in subdivision (d)(1) of this section, a report of a criminal responsibility examination shall include the following:

(A) An opinion as to whether as the result of a mental disease or defect the defendant at the time of the alleged criminal conduct lacked the capacity to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law and an explanation of the examiner's opinion and the basis of the opinion; and

(B) 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 with an explanation of the examiner's opinion and the basis of the opinion.

(e) If an examination cannot be conducted because of the unwillingness of the defendant to participate in the examination, the report of the 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 an examination shall file the report of the 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 examination concerning a defendant shall be provided to the circuit court by the person designated to perform the 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 to the prosecuting attorney and the defendant's attorney for inspection and copying.

(2) The court shall require the prosecuting attorney to provide to the examiner any information relevant to the 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 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 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) When an examination of a defendant has been completed, the county from which the defendant had been sent for the 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 examination was performed.

(2) 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.

(j) (1) A person or entity that provides treatment under this subchapter may impose a charge for the cost of the treatment.

(2) A charge for costs under subdivision (j)(1) of this section may not exceed the actual cost of the treatment.

(3) (A) The division shall promulgate rules establishing reasonable charges for costs of treatment under this subchapter.

(B) Rules establishing reasonable charges for costs of treatment under this subchapter shall:

(i) Provide for postponing the collection of the charges based on clinical considerations or the patient's inability to pay, or both; and

(ii) Waive charges for treatment of defendants who plead guilty or nolo contendere or are found guilty at trial.

(k) An examination report required to be filed with the clerk of the court under this subchapter is a public record.

(l) This subchapter does not preclude the defendant from having a fitness-to-proceed examination or a criminal responsibility examination conducted by a defense expert or from maintaining the defense of not guilty by reason of mental disease or defect using testimony from a defense expert or other evidence.