5-2-328. Examination of defendant — Affirmative defense of lack of criminal responsibility.

5-2-328. Examination of defendant — Affirmative defense of lack of criminal responsibility. (a)(1) Subject to § 5-2-311, if and only if a defendant charged in circuit court files a notice of intent to raise the affirmative defense of lack of criminal responsibility under § 5-2-304, the circuit court shall immediately suspend any further proceedings. (2) When the defendant files notice under subdivision (a)(1) of this section, then the circuit court may on its own motion or on the motion of the prosecuting attorney or the defense attorney enter an order appointing one (1) or more disinterested experts to examine the defendant with regard to the defense of lack of criminal responsibility. (3)(A) An examination under this section shall be for a period not exceeding sixty (60) days or a longer period as the Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services or his or her designee determines to be necessary for the purpose of the examination. (B)(i) A person designated by the circuit court to perform an examination under this section shall file the examination report with the clerk of the circuit court ordering the examination. (ii) An examination report filed under this subdivision (a)(3)(B) is a public record. (iii) A copy of the examination report shall be provided by the clerk to the defendant's attorney and the prosecuting attorney. (b)(1) A uniform order to be used by a circuit court ordering an examination of a defendant's lack of criminal responsibility under this section shall be developed by the Administrative Office of the Courts in conjunction with the following organizations: (A) The Arkansas Prosecuting Attorneys Association; (B) The Department of Human Services; and (C) The Arkansas Public Defender Commission. (2) The uniform order developed under this subsection shall contain, without limitation, the following information: (A) The defendant's name, age, gender, and race; (B) The criminal charges pending against the defendant; (C) The defendant's attorney's name and address; (D) The defendant's custody status; (E) The case number for which the examination was ordered; (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, if applicable. (3) The uniform order shall require the prosecuting attorney to provide to the examiner any information relevant to the examination, including without limitation: (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 determined to be relevant to the examination, including the criminal history of the defendant. (4) The circuit court may require the attorney for the defendant to provide any available information relevant to the examination, including without limitation: (A) Psychiatric records; (B) Medical records; or (C) Records pertaining to treatment of the defendant for substance or alcohol abuse. (5) After it is developed, a copy of the uniform order under this subsection shall be forwarded to the director. (6) An examination under this section shall not be conducted without using the uniform order required under this subsection. (c) An examination report prepared by an examiner ordered under this section shall contain: (1) A description of the nature of the examination; (2) An opinion as to whether as the result of a mental disease or defect the defendant at the time of the alleged offense lacked the capacity to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of the law, an explanation of the examiner's opinion, and the basis of that opinion; (3) When directed by the circuit court, an opinion as to whether at the time of the alleged offense the defendant lacked the capacity to form a culpable mental state that is required to establish an element of the alleged offense, an explanation of the examiner's opinion, and the basis of that opinion; and (4) If an examination cannot be conducted because of the unwillingness of the defendant to participate in the examination, an opinion as to whether the unwillingness of the defendant is the result of mental disease or defect. (d)(1) An examiner appointed under this section to examine a defendant with regard to a defense of lack of criminal responsibility also may be appointed by the circuit court to examine the defendant with regard to the defendant's fitness to proceed under § 5-2-327. (2) However, the examiner must file with the circuit court separate written reports concerning the defendant's fitness to proceed and lack of criminal responsibility. (e) Unless otherwise required by this section, an examiner shall not render an opinion or issue a report on the defendant's lack of criminal responsibility if the examiner believes that the defendant is not fit to proceed until the circuit court issuing the order for an examination into the defendant's lack of criminal responsibility makes a determination as to the defendant's fitness to proceed. (f) A circuit court shall not order the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services to conduct an examination of a defendant's lack of criminal responsibility if a previous examination into the defendant's fitness to proceed has already determined that the defendant does not have a mental disease or defect unless the requesting party can show reasonable cause to believe: (1) There is evidence of a mental disease or defect that was not fully considered in the previous examination into the defendant's fitness to proceed; or (2) That the previous 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. (g)(1) This section does not prevent a defendant from having an examination into his or her lack of criminal responsibility conducted by his or her expert or from maintaining a defense of not guilty by reason of a lack of criminal responsibility using testimony from a defense expert or other evidence. (2) If a defendant wishes to be examined by an expert of his or her own choosing, the circuit court shall provide the expert with reasonable opportunity to examine the defendant upon a timely request.