2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 6 - Demurrers, Motions, and Special Pleas and Exceptions
Part 2 - Insanity and Mental Incompetency
§ 17-7-130.1. Evidence as to Defendant's Sanity at Time of Offense; Examination and Testimony by Psychiatrist or Psychologist

At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant's sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness.

(Code 1981, §17-7-130.1, enacted by Ga. L. 1985, p. 637, § 1.)

- For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005); 58 Mercer L. Rev. 111 (2006). For annual survey on criminal law, see 61 Mercer L. Rev. 79 (2009).

JUDICIAL DECISIONS

Section not applicable to sentencing assistance.

- O.C.G.A. § 17-7-130.1 deals only with an insanity defense and does not apply to a defendant's motion for expert assistance for sentencing. Bright v. State, 265 Ga. 265, 455 S.E.2d 37, cert. denied, 516 U.S. 872, 116 S. Ct. 196, 133 L. Ed. 2d 131 (1995).

- Despite the defendant's contentions that the trial court erred in not ensuring the competency required to control the defense, nothing before the appellate court indicated that the defendant was incompetent to stand trial, nor was there any evidence that should have indicated to the trial court that a sua sponte inquiry into competency was required. Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007).

- Clear legislative intent of O.C.G.A. § 17-7-130.1 is that the factfinder should resolve the issue of sanity based upon the evidence before the factfinder, including expert testimony. Tolbert v. State, 260 Ga. 527, 397 S.E.2d 439 (1990), cert. denied, 500 U.S. 921, 111 S. Ct. 2025, 114 L. Ed. 2d 111 (1991).

"Fair warning" aspect of the void-for-vagueness doctrine is inapplicable to O.C.G.A. § 17-7-130.1, which is part of the statutory scheme for handling insanity defenses in criminal cases and provides, inter alia, for the examination of the defendant by a court-appointed psychiatrist or psychologist; and the statute sets forth sufficient guidelines to avoid the statute's arbitrary and discriminatory implementation, so the statute is not unconstitutionally vague. Lamar v. State, 278 Ga. 150, 598 S.E.2d 488 (2004).

- When a court-appointed mental health expert was not called by the state but by the court itself in accordance with O.C.G.A. § 17-7-130.1, the expert's name was not required to be listed by the state in response to the defendant's demand under former law. Moore v. State, 220 Ga. App. 434, 469 S.E.2d 211 (1996).

- Since the court appointed a mental health expert who was independent of either party and was impartial, the defendant was not entitled to have another expert appointed to examine the defendant and testify at trial after the defendant filed notice of an insanity defense. Moore v. State, 220 Ga. App. 434, 469 S.E.2d 211 (1996).

- O.C.G.A. §§ 16-3-2 and16-3-3 provide the authority for any defendant to assert an insanity defense, and there is nothing in O.C.G.A. § 17-7-130.1 which limits that authority. Motes v. State, 256 Ga. 831, 353 S.E.2d 348 (1987).

- If the defendant wants to introduce expert testimony as to the defendant's mental state, the state must be allowed the same privilege, and the defendant, in light of the defendant's partial waiver of the right to remain silent, must cooperate by talking to the court-appointed expert. But if the defendant chooses to prove insanity by means other than expert testimony, the partial waiver does not arise, the case may proceed as any other, the defendant choosing whether or not to talk to the court appointed expert, and the court should not forbid the defendant's use of the insanity defense if the defendant refuses to submit to examination. Motes v. State, 256 Ga. 831, 353 S.E.2d 348 (1987).

It was not error to admit a defendant's statements to an expert appointed pursuant to O.C.G.A. § 17-7-130.1 to examine the defendant upon the defendant's assertion of an insanity defense because: (1) the state had a statutory right, under O.C.G.A. § 17-7-130.1, to call the expert to rebut the testimony of the defendant's expert regarding the defendant's mental state at the time of the crimes charged; (2) the defendant had no Sixth Amendment right to counsel during the expert's examination or Fifth Amendment right requiring the repetition of the defendant's Miranda rights during the interview with the appointed expert; and (3) the defendant's counsel was aware of the psychiatric interview and chose not to attend. Walker v. State, 290 Ga. 467, 722 S.E.2d 72 (2012).

- Court-appointed medical expert cannot be classified as an agent of the state, but must be considered as an independent and impartial witness. The same rule applies to a medical expert, appointed prior to indictment, whose professional opinion might be needed so that the court is able to fashion a proper disposition of matters before the court. Tolbert v. State, 260 Ga. 527, 397 S.E.2d 439 (1990), cert. denied, 500 U.S. 921, 111 S. Ct. 2025, 114 L. Ed. 2d 111 (1991).

There were no violations of due process and separation of powers when a psychiatrist employed by a state hospital served as the court-appointed witness and was introduced to the jury by the trial court as the state's witness because the fact that the expert's opinion that the defendant was not insane when the defendant shot the victim supported the position of the state did not make the expert a witness for the prosecution. Danenberg v. State, 291 Ga. 439, 729 S.E.2d 315 (2012), cert. denied, 568 U.S. 1124, 133 S. Ct. 941, 184 L. Ed. 2d 726 (2013).

Patient-psychologist privilege does not apply when the defense is insanity and the statement in question is made during an evaluation by a court-appointed psychologist. The same is true if the examining psychologist is the state's psychologist. Harris v. State, 256 Ga. 350, 349 S.E.2d 374 (1986).

- Defendant who obtains expert assistance to assist the defendant in the evaluation, preparation, and presentation of an insanity defense, and to initially prepare that defense in secret, need not submit to an examination of a state expert until the defendant has had an opportunity to decide whether to present expert testimony at trial; however, pursuant to the state's interest under O.C.G.A. § 17-7-130.1 to have an opportunity to rebut the defendant's expert testimony at trial, the defendant must cooperate with the court expert in time for the state to adequately prepare the state's evidence in response to the defendant's testimony. Bright v. State, 265 Ga. 265, 455 S.E.2d 37, cert. denied, 516 U.S. 872, 116 S. Ct. 196, 133 L. Ed. 2d 131 (1995).

Because O.C.G.A. § 17-7-130.1, which is part of the statutory scheme for handling insanity defenses in criminal cases and provides, inter alia, for the examination of the defendant by a court-appointed psychiatrist or psychologist, does not require a defendant to cooperate with the court's expert and provides no sanctions against a defendant who refuses to so cooperate the statute is not overbroad. Lamar v. State, 278 Ga. 150, 598 S.E.2d 488 (2004).

- Trial court did not abuse the court's discretion in allowing a court-appointed psychologist to testify as to the defendant's mental condition at the time of the commission of the crime, even though the defendant was medicated during the defendant's interview but was not medicated during the commission of the crime. Frazier v. State, 216 Ga. App. 111, 452 S.E.2d 803 (1995).

- In a malice murder prosecution, as the defendant claimed he unintentionally killed his wife while sleepwalking, and expert testimony supported this claim, the trial court erred in classifying the defense as an insanity defense under O.C.G.A. § 17-7-130.1, and in instructing the jury on the defense of insanity, as this detracted from the defendant's primary defense that the defendant did not commit the acts in question voluntarily and with criminal intent. Smith v. State, 284 Ga. 33, 663 S.E.2d 155 (2008).

- With regard to a defendant's convictions for kidnapping, aggravated sodomy, and aggravated sexual battery, the defendant was not rendered ineffective assistance of counsel as a result of the trial counsel's decision not to file a plea of guilty but mentally retarded and, instead, attacked the credibility of the victim as trial counsel's decision as to which theory of defense to pursue was a matter of trial strategy and tactics that was not unreasonable and thus did not constitute ineffective assistance. Hampton v. State, 294 Ga. App. 857, 670 S.E.2d 502 (2008).

- Since the defendant withdrew the defendant's notice of insanity as a defense prior to trial, but offered evidence as to the defendant's mental health during the sentencing phase, the tender of such evidence was not the assertion of an insanity defense, and O.C.G.A. § 17-7-130.1 does not apply to authorize the trial court to call a psychiatrist; however, such action was not an improper comment by the court on issues of mitigation since the court had discretion to summon and examine witnesses of the court's own choosing. Henry v. State, 265 Ga. 732, 462 S.E.2d 737 (1995).

Cited in Guilford v. State, 258 Ga. 253, 368 S.E.2d 116 (1988); Taylor v. State, 261 Ga. 287, 404 S.E.2d 255; Guillen v. State, 258 Ga. App. 465, 574 S.E.2d 598 (2002).

Insanity Defense, 41 POF2d 615.

- Admissibility of results of computer analysis of defendant's mental state, 37 A.L.R.4th 510.

Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist, 85 A.L.R.4th 19.

Right of indigent defendant in state criminal prosecution to ex parte in camera hearing on request for state-funded expert witness, 83 A.L.R.5th 541.