Title 234--RULES OF CRIMINAL PROCEDURE [234 PA. CODE CHS. 5 AND 11] Examination of Defendant by Commonwealth's Mental Health Experts [31 Pa.B. 2549] Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt new Pa.R.Crim.P. 567 (Examination of Defendant by Commonwealth's Mental Health Expert), and make correlative changes to Rules 573 (Pretrial Discovery and Inspection) and 1101 (Suspension of Acts of Assembly). New Rule 567 would establish the procedures for the examination of a defendant by a mental health expert retained by the Commonwealth either by agreement of the parties, or by court order when the court determines the defendant intends to introduce evidence concerning his or her mental condition. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed rule changes precedes the Report.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901 or criminal.rules@supreme.court.state.pa.us, no later than Monday, June 18, 2001.
By the Criminal Procedural Rules Committee
JOSEPH P. CONTI,
ChairAnnex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES PART E. INFORMATION (Editor's Note: Rule 567 is new and is printed in regular type to enhance its readability.)
Rule 567. Examination of Defendant by Commonwealth's Mental Health Expert.
(A) EXAMINATION OF DEFENDANT
(1) BY AGREEMENT
(a) The defendant, defendant's counsel, and the attorney for the Commonwealth may agree to an examination of the defendant by the mental health expert(s) designated in the agreement.
(b) The agreement shall be in writing and signed by the defendant, defendant's counsel, and the attorney for the Commonwealth, or made orally on the record.
(c) Unless otherwise agreed, the mental health expert(s) promptly shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert's opinions and the grounds for each opinion.
(2) BY COURT ORDER
(a) Upon motion of the attorney for the Commonwealth, and after notice to the defendant and an opportunity to be heard, if the court determines at any stage of the proceedings that the defendant intends to introduce evidence concerning his or her mental condition, the court shall order that the defendant submit to an examination by one or more mental health experts selected by the Commonwealth for the purpose of determining the mental condition put in issue by the defendant.
(b) When the court orders an examination pursuant to this paragraph, the court shall advise the defendant on the record:
(i) of the purpose of the examination and the contents of the court's order;
(ii) that the information obtained from the examination may be used at trial; and
(iii) the potential consequences of the defendant's refusal to cooperate with the Commonwealth's mental health expert(s).
(c) The court's order shall:
(i) specify the time, place, and conditions of the examination;
(ii) provide that the examination be recorded, and that copies be made available to the parties;
(iii) specify who may be present at the examination; and
(iv) specify the time within which the mental health expert(s) must submit the written report of the examination.
(d) Upon completion of the examination of the defendant, the mental health expert(s), within the time specified by the court as provided in paragraph (A)(2)(c)(iv), shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert's opinions and the grounds for each opinion.
(B) DISCLOSURE OF REPORTS
(1) The mental health experts' reports and the recordings of the examination of the defendant shall be confidential, and not of public record.
(2) Any mental health expert whom either party intends to call to testify concerning the defendant's mental condition must prepare a written report. No mental health expert may be called to testify concerning the defendant's mental condition until the expert's report has been disclosed as provided herein.
(3) The court shall set a reasonable time after the Commonwealth's expert's examination for the disclosure of the reports of the mental health experts.
(4) Upon a sufficient showing, the court may at any time order that the disclosure of a report or reports be restricted or deferred for a specified time, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court(s) in the event of an appeal.
(C) SANCTIONS FOR NON-COMPLIANCE
At any time during the course of the proceedings, upon motion or sua sponte, if the court determines there has been a failure to comply with this rule, the court may order compliance, may grant a continuance, or may grant other appropriate relief. Upon motion, any hearing to determine if there has been a failure to comply may be held in camera and the record sealed until after disposition of the case.
Comment This rule establishes the procedures for the examination of the defendant by a mental health expert(s) retained by the prosecution pursuant to an agreement by the parties, see paragraph (A)(1), or a court order, see paragraph (A)(2).
''Mental Health Expert,'' as used in this rule, includes a psychiatrist, a licensed psychologist, a physician, or any other expert in the field of mental health who will be of substantial value in the determination of the issues raised by the defendant concerning his or her mental condition.
Examination of Defendant
Paragraph (A)(1) is intended to encourage the defendant, defendant's counsel, and the attorney for the Commonwealth to agree to an examination of the defendant by the Commonwealth's mental health expert(s).
When the defendant, defendant's attorney, and the attorney for the Commonwealth agree that the defendant will be examined under this rule, at a minimum, the agreement should specify the time, place, and conditions of the examination, who may be present during the examination, how the examination will be recorded, and the time within which the parties will disclose the reports of their experts.
Paragraph (A)(2) provides for the examination of a defendant by order of the court upon motion of the Commonwealth. The purpose of providing notice to the defendant and an opportunity to be heard in paragraph (A)(2)(a) is so the defendant may challenge the Commonwealth's selected mental health expert(s) when, for example, there is a conflict of interest, or for some other appropriate reason.
It is intended that the examining mental health expert(s), whether appointed pursuant to the agreement of the parties or a Commonwealth's motion, have substantial discretion in how to conduct an examination. The conduct of the examination, however, must conform to generally recognized and accepted practices in that profession. Therefore, the examination of the defendant may consist of such interviewing, clinical evaluation, and psychological testing as the examining mental health expert(s) considers appropriate, within the limits of non-experimental, generally accepted medical, psychiatric, or psychological practices.
Nothing in this rule is intended to limit the number of examining experts the defense may use, nor is it to be construed as a limitation on any party with regard to the number of other expert or lay witnesses they may call to testify concerning the defendant's mental condition.
The court is required in paragraph (A)(2)(b) to inform the defendant, on the record, about the request for a compelled examination. The court is to explain that the examination is being conducted at the request of the attorney for the Commonwealth and that the purpose of the examination is to obtain information about defendant's mental condition. In addition, the court should explain the procedures for the examination that are included in the court's order as set forth in paragraph (A)(2)(b), and explain the potential consequences of the defendant's failure to cooperate with the examination.
As part of the court's order, the judge is required to include a provision for the recording of the examination. The judge also must determine the type of recording, such as audio- or video-tape recordings.
Paragraph (A)(2)(d) requires that the examining mental health expert(s) promptly prepare a written report and sets forth the minimum contents of that report. It is intended that the scope of the mental health expert's report be limited in the court's order to matters related to the defendant's mental condition at the time put into issue by the defendant.
Disclosure of Reports
After the examination of the defendant by the Commonwealth's mental health expert(s) is completed and the mental health expert's report has been prepared, the defendant and the Commonwealth are required in paragraph (B) to disclose the reports that are made by any experts either party intends to call to testify concerning the defendant's mental condition. The reports must be in writing, and should comply with the content requirements in paragraph (A)(2)(d). An expert witness cannot testify until the report is disclosed as provided in paragraph (B)(2) and (3). There may be situations in which the court would have to call a short recess to permit the expert to complete a written report and to give the parties an opportunity to review the report, such as when a mental health expert(s) is observing the defendant during the trial and will be called to testify on these observations.
When the parties agree to the examination, the time for the disclosure of the reports should be set by the agreement of the parties. The agreement should permit adequate time to review the reports and prepare for the proceeding. If the parties cannot agree, in cases proceeding pursuant to court order under paragraph (A)(2), the court should set the time for the disclosure of reports, which should afford the parties adequate time to review the reports and prepare for the proceeding.
In no case should the disclosure occur until after the defendant has been examined by the Commonwealth's mental health expert(s) and the mental health expert(s) has prepared and submitted a written report. Establishing a reasonable time frame and providing for the reciprocal disclosure are intended to further promote the fair handling of these cases. There may be cases in which, although proceeding pursuant to a court order, the parties, with the court's approval, agree to an earlier time for disclosure consistent with the purposes of this rule. This rule would not preclude such an agreement.
Paragraph (B)(4) recognizes that there may be situations in which the disclosure of an expert's report should be restricted in some way, and gives the court discretion to determine the appropriate action. For example, the court could redact a portion of the report, limit the use of the report, limit to whom the report may be shown, delay the delivery of the report, or seal the report for a specified period of time.
Examples of situations in which the court might limit disclosure of a report include when there is a need to protect confidential relationships and privileges recognized by law, when there is irrelevant information contained in the report that might be used to develop a case against the defendant, or when the information is so inherently prejudicial that it requires special handling by the judge.
Use of Information Obtained Under This Rule
Information obtained from the examination of a defendant by a Commonwealth's expert is not to be disclosed or used except as permitted by case law, which is evolving. See, e.g., Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995), Commonwealth v. Morley, 681 A.2d 1254 (Pa. 1996), Commonwealth v. Szuchon, 693 A.2d 959 (Pa. 1997), Commonwealth v. Karenbauer, 715 A.2d 1086 (Pa. 1998), and Commonwealth v. Sartin, 751 A.2d 1140 (Pa. 2000).
See the Pennsylvania Rules of Evidence concerning the admissibility of the experts' reports and information from any examinations of the defendant by an expert.
Sanctions
Paragraph (C) authorizes the court to impose sanctions on any person who has failed to comply with any of the provisions of this rule, including the attorney for the Commonwealth, the defendant, defendant's counsel, or an expert. The type of sanction is left to the court's discretion.
When the defendant has refused to cooperate in the examination by the Commonwealth's mental health expert(s), before imposing a sanction, the court should consider whether the defendant's failure to cooperate (1) was intentional, (2) was the result of the defendant's mental illness, and (3) will have an adverse and unfair impact on the Commonwealth's ability to respond to the defendant's claim. The court also should consider whether ordering the defendant to resubmit to the examination would result in the defendant's cooperation. See ABA Standards, supra, Std. 7-3.4(c) for examples of possible sanctions to impose on a defendant.
Mental Health Procedures Act
Section 7402 (Incompetence to Proceed on Criminal Charges and Lack of Criminal Responsibility as Defense) of the Mental Health Procedures Act, 50 P. S. § 7402, prescribes procedures for conducting court-ordered examinations of a defendant when the defendant's competency is an issue. The procedures in Section 7402 are distinct from the procedures set forth in this rule. However, to the extent that the statutory procedures conflict with the procedures in this rule, this rule takes precedence. See Rule 1101 for suspensions.
Official Note: Adopted ______, effective ______.
Committee Explanatory Reports:
Report explaining the proposed new rule governing the examination of the defendant by the Commonwealth's expert published at 31 Pa.B. 2552 (May 19, 2001).
PART F. PROCEDURES FOLLOWING FILING OF INFORMATION Rule 573. Pretrial Discovery and Inspection.
* * * * * (C) DISCLOSURE BY THE DEFENDANT
(1) MANDATORY:
(a) Notice of Alibi Defense:
A defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule [578] 579, file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.
(b) Notice of Insanity Defense or Mental Infirmity Defense:
A defendant who intends to offer at trial the defense of insanity, or a claim of mental infirmity, shall, at the time required for filing an omnibus pretrial motion under Rule [578] 579, file of record notice, signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific available information as to the nature and extent of the alleged insanity or claim of mental infirmity, the period of time that the defendant allegedly suffered from such insanity or mental infirmity, and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call at trial to establish such defense.
* * * * * Comment This rule is intended to apply only to court cases. However, the constitutional guarantees mandated in Brady v. Maryland, 373 U.S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions, apply to all cases, including court cases and summary cases, and nothing to the contrary is intended. For definitions of ''court case'' and ''summary case,'' see Rule 103.
See Rule 567 (Examination of Defendant by Commonwealth's Mental Health Expert) for the procedures for the examination of the defendant by the Commonwealth's expert when the defendant intends to introduce evidence concerning his or her mental condition in any proceeding.
* * * * * Official Note: Present Rule 305 replaces former Rules 310 and 312 in their entirety. Former Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996; Comment revised July 28, 1997, effective immediately; Comment revised August 28, 1998, effective January 1, 1999; renumbered Rule 573 and amended March 1, 2000, effective April 1, 2001; Comment revised ______ , 2001, effective ______ , 2001.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Report explaining the proposed Comment revision published at 31 Pa.B. 2552 (May 19, 2001).
CHAPTER 11. ABOLITIONS AND SUSPENSIONS Rule 1101. Suspension of Acts of Assembly.
This rule provides for the suspension of the following Acts of Assembly:
* * * * * (6) Section 7402 of the Mental Health Procedures Act, Act of July 9, 1976, P. L. 817, No. 143, 50 P. S. § 7402, only insofar as it is inconsistent with Rule 567.
[(6)] (7) * * *
[(7)] (8) * * *
* * * * * Official Note: Former Rule 39 adopted October 1, 1997, effective October 1, 1998; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 159 adopted September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; amended April 10, 1989, effective July 1, 1989; amended January 31, 1991, effective July 1, 1991; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 340 combined previous Rules 321 and 322, which were the prior suspension rules, and was adopted June 29, 1977, effective September 1, 1977; amended April 24, 1981, effective June 1, 1981; amended January 28, 1983, effective July 1, 1983; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 1415 adopted July 23, 1973, effective 90 days hence; paragraph (g) added March 21, 1975, effective March 31, 1975; amended August 14, 1995, effective January 1, 1996; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. Former Rule 2020 adopted September 3, 1993, effective January 1, 1994; rescinded March 1, 2000, effective April 1, 2001, and replaced by Rule 1101. New Rule 1101 adopted March 1, 2000, effective April 1, 2001; amended _____, 2001, effective _____, 2001.
Committee Explanatory Reports:
* * * * * Report explaining the addition of new paragraph (6) published at 31 Pa.B. 2552 (May 19, 2001).
REPORT Proposed New Rule of Criminal Procedure 567 and
Correlative Changes to Rules 573 and 1101EXAMINATION OF DEFENDANT BY COMMONWEALTH'S
MENTAL HEALTH EXPERT(S)1I. Introduction
In 1996, the Supreme Court decided Commonwealth v. Morley, 681 A.2d 1254 (Pa. 1996), holding, inter alia, that ''where the defendant has raised a defense based on mental infirmity, the defendant may not refuse to allow the Commonwealth psychiatrist to examine him or her on the basis that it violates the defendant's privilege against self-incrimination.'' In view of this opinion and several other similar cases,2 the Committee agreed that the Rules of Criminal Procedure should provide uniform procedures for a defendant's examination by the Commonwealth's mental health expert(s).
The Committee agreed that these new examination procedures should be set forth in a separate rule, and as explained more fully in the Discussion Section below, should apply at any stage of the proceedings when the defendant intends to introduce evidence concerning his or her mental condition.3 The Committee is proposing the new rule be numbered Rule 567, the first rule in Chapter 5, Part F (Procedures Following the Filing of Information). New Rule 567 would provide for the examination of the defendant either by agreement of the parties or by order of the court.4
II. Discussion
A. Scope of Rule
The first issue tackled by the Committee was the scope of the rule. After considerable discussion, the Committee concluded that the examination of the defendant by the Commonwealth's mental health expert would be triggered whenever the defendant is going to introduce any evidence of his or her mental condition at any stage in the proceedings. This would include not only trials, but, for example, proceedings such as sentencing or juvenile decertification hearings. Thus the application of Rule 567 would not be limited to cases in which the defendant is raising an insanity or mental infirmity defense, nor would it be limited to the use of expert testimony or to the time of trial.
B. Examination of Defendant by Agreement
Recognizing the benefits to the system of a less adversarial process for determining whether a case is appropriate for the examination of the defendant by the Commonwealth's mental health expert and of encouraging cooperation among legal professionals and mental health professionals in these cases,5 the Committee agreed to incorporate into the new rule a procedure for an examination by the agreement of the parties. Because we wanted to make it clear that obtaining the agreement of the parties was the preferable procedure, the Committee has set forth these procedures first. See paragraph (A)(1).
Paragraph (A)(1)(a) provides that the agreement designate the mental health expert. The Committee concluded that since the decision to have the defendant examined was by agreement, the parties should designate the examining mental health expert, rather than leave that decision to the judge. Because this is an agreement, other than requiring the parties to designate the mental health expert in the agreement, the Committee did not want to mandate in the rule all of the contents of the agreement, preferring to give the parties discretion about how much detail they want in the agreement. The Committee has included in the Comment the minimum contents we believe should be provided in the agreement as an aid to the parties in preparing their agreement.
Paragraph (A)(1)(b) requires the agreement to be in writing, and signed by the defendant, defendant's counsel, and the attorney for the Commonwealth, or made orally on the record. The Committee used ''defendant, defendant's counsel, and the attorney for the Commonwealth'' instead of ''parties'' to emphasize that the defendant and the defendant's attorney have to agree. Some members expressed concern about the requirement that the defendant sign the agreement, pointing out that when mental condition is the issue, some defendants would not understand the nature of the agreement, or would not sign the agreement because of their mental condition. Ultimately, the Committee agreed to retain the signature requirement, noting if a defendant is so mentally ill that he or she does not know what they are doing, then you would not have an agreement, and the parties would have to proceed by obtaining a court order. It also was noted that if the attorneys agree, but the defendant does not have the capacity to agree, then the attorneys could file a stipulated motion explaining to the court the reasons for the defendant's failure to sign the agreement.
Paragraph (A)(1)(c) requires the mental health expert to promptly prepare a report of the examination unless the parties otherwise agree. The Committee agreed the parties should have the option in the agreement to provide for the time for the report to be prepared, the contents of the report, and any other report-related matters. However, the rule makes it clear that, unless the agreement provides otherwise, the expert must prepare a standard report and that this must be done promptly after the completion of the examination. We used language comparable to Rule 573(B)(2)(b) to outline what should be included in the report.
C. Examination of Defendant By Court Order
When the parties do not agree to the examination of the defendant by the Commonwealth's mental health expert(s), the court may order the examination. See paragraph (A)(2). Paragraph (A)(2)(a) requires the attorney for the Commonwealth to file a motion requesting an order for the examination and to designate in the motion the mental health expert(s) he or she has selected for the examination. One of the issues the Committee debated at length was whether the judge should have any discretion with regard to (1) ordering the defendant to submit to an examination when requested by the Commonwealth and (2) accepting the mental health expert designated by the Commonwealth. Although the Committee did not think the order would be automatic upon the request of the attorney for the Commonwealth, if the court determines that the defendant intends to introduce evidence concerning his or her mental condition, the judge must order the examination. However, concerning the judge's acceptance of the Commonwealth's designated expert, because of possible conflicts, the Committee thought the judge should have discretion to appoint a different expert in the appropriate case. To facilitate the judge's ability to exercise his or her discretion under this provision, the rule requires that the defendant be given notice of the motion and an opportunity to be heard on the motion. See paragraph (A)(2)(a).
Paragraph (A)(2)(b) requires the judge to advise the defendant on the record about the examination, that the information may be used at trial, and the potential consequences for failing to cooperate in the examination. The Committee agreed that having the judge speak to the defendant in person would emphasize the nature of the examination and the importance of cooperation. These requirements are further explained in the eighth paragraph of the Comment.
Paragraph (A)(2)(c) sets forth the required contents of the court's order. There was an extensive discussion concerning the recording of the examination and access to the recording. The Committee agreed all examinations would be recorded and copies of the recording would be given to all parties, and that the judge must include this in the order.6 See paragraph (A)(2)(c)(ii). In addition, as explained in the Comment, the judge must provide in the order the type of recording, such as audio- or video-tape recordings.
The judge also must specify in the order who may be present. The Committee agreed this was the judge's decision, rather than the decision of one of the parties or the mental health expert. By leaving the decision to the judge on a case-by-case basis, we intend to accommodate other persons besides cousel, such as a parent if the issue is a juvenile decertification hearing. See paragraph (A)(2)(c)(iii). Finally, the judge must specify in the order the time within which the mental health expert(s) must submit the written report of the examination.
Paragraph (A)(2)(d), which is similar to paragraph (A)(1)(c) with regard to what the expert must include in the report, requires the expert to prepare a written report within the time specified in the order.
D. Disclosure of Reports
Paragraph (B) sets forth the procedures governing the disclosure of all reports of all mental health experts either party intends to call to testify. The Committee debated at length the issues related to the public's access to the experts' reports and any tape recordings of the examination. We concluded that the reports and recordings are confidential and should not be public records, and have provided this in paragraph (B)(1).
Paragraph (B)(2) and the Comment make it clear that any mental health expert who will be called to testify must prepare a written report. The rule also prohibits an expert who has not prepared a report as required by the rule from being called to testify. As pointed out in the Comment, there may be situations in which the court would have to call a short recess to permit an expert to complete a report such as when the expert is observing the defendant during the trial.
Paragraph (B)(3) makes it clear that the court must set the time for the disclosure of reports and that time must be a reasonable time after the Commonwealth's experts examination. The Comment explains that the parties in their agreement may set the time for disclosure, but if they cannot agree to the time, the court should set the time. In setting the time for disclosure, the parties or court should afford adequate time for the parties to review the reports and prepare for the proceeding. The Comment also notes that even when proceeding pursuant to a court order, the parties may agree to an earlier time for disclosure consistent with the rule.
Another issue considered by the Committee was the Commonwealth's expert's access to information other than the defendant's experts' reports, such as school records or certain test results. The Committee agreed to not address this in the rule, observing that the Commonwealth may ask the defendant to provide this information, and if the defendant does not comply, the Commonwealth may request the court to order the defendant to comply.
Paragraph (B)(4) is similar to the provisions in Rule 573(F) (Protective Orders). After a lengthy discussion concerning public access to the reports and whether portions of the reports could be sealed or the hearing held in camera, the Committee agreed to retain the in camera provision comparable to that provided in Rule 573(F). The Comment sets forth examples of situations when the court might consider limiting disclosure pursuant to paragraph (B)(4).
E. Sanctions for Non-compliance
Paragraph (C) (Sanctions for Non-compliance) is similar to Rule 573(E) (Remedy). The Committee modified the provision to make it clear that the court may impose sanctions on counsel, the defendant, or an expert for non-compliance with any provisions of Rule 567. The rule permits the court to hear a motion on sanctions in camera, and requires that the hearing be on the record. The Comment further explains this provision, and specifically addresses the special circumstances when a defendant fails to cooperate in the examination. The court should consider whether the defendant's failure to cooperate is due to his or her mental condition or was intentional, and what impact the failure to cooperate will have on the Commonwealth's ability to respond to the defendant's claim.
F. Use of Information Obtained Under the Rule
The Committee considered at length how to address the use of information obtained under the rule. We noted that the law addressing the use of information obtained from the Commonwealth's mental health expert's examination of the defendant is evolving and the permitted uses are not fully defined. In view of this, the Committee agreed to cite the relevant case law in the Comment.
G. Mental Health Procedures Act
As the Committee developed new Rule 567, we considered the provisions of the Mental Health Procedures Act, 50 P. S. § 7101 et seq. The Act sets forth the procedures for determining competency issues, as well as limited procedures concerning the lack of criminal responsibility as a defense. The Committee concluded that new Rule 567 does not apply in the context of competency proceedings under the Act. However, to avoid any confusion concerning the application of the Act to examinations governed by Rule 567, the Comment makes it clear that the rule and Act are distinct. In addition, the Committee is proposing that Section 7402 of the Act be suspended ''only insofar as it is inconsistent with Rule 567.'' See Rule 1101 (Suspension of Acts of Assembly).
H. Correlative Revisions of the Comment to Rule 573 (Pretrial Discovery and Inspection)
The Committee is proposing that the Rule 573 Comment be revised by the addition of a cross-reference to new Rule 567.
______1 As explained in the Comment to proposed new Rule 567, ''mental health expert,'' as used in this rule, is intended to include a psychiatrist, a licensed psychologist, a physician, or any other expert in the field of mental health who will be of substantial value in the determination of the issues raised by the defendant concerning his or her mental condition. It is intended that, in the appropriate case, either by agreement of the parties or by court order, the defendant may be examined by more than one mental health expert.
2 See, e.g., Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995), Commonwealth v. Karenbauer, 715 A.2d 1086 (Pa. 1998), and Commonwealth v. Sartin, 751 A.2d 1140 (Pa. 2000).
3 To accommodate the broad application of the rule, the Committee agreed that a term with a more expansive application than ''insanity'' should be used. After examining the rules in other states, as well as case law, we found that ''mental condition'' is a generally accepted term and suited the rule's purposes.
4 Because the Rule 567 examination would be triggered either by agreement or by court order, the Committee agreed that the rule would not require any form of formal notice by the defendant.
5 The Committee also note that this is consistent with what appears to be the approach being followed in some judicial districts in Pennsylvania as well as in other jurisdictions.
6 The members noted although a party could not object to the recording of the examination, he or she could object to the admissibility of the recording if the other party wanted to introduce it into evidence at a proceeding.
[Pa.B. Doc. No. 01-849. Filed for public inspection May 18, 2001, 9:00 a.m.]
