Section 569. Examination of Defendant by 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, if the court determines the defendant has provided notice of an intent to assert a defense of insanity or mental infirmity or notice of the intention to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant pursuant to Rule 568, the court shall order that the defendant submit to an examination by one or more mental health experts specified in the motion 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 on the record shall advise the defendant in person and in the presence of defendant’s counsel:

(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 who may be present at the examination; and

(ii) 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)(ii), 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 BETWEEN PARTIES

(1) The mental health experts’ reports 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 parties’ mental health experts.

(C) PROTECTIVE ORDERS

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 camera.

(D) 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.

(E) This rule does not apply to competency proceedings.

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, and the time within which the parties will disclose the reports of their experts.

For the procedures when the Commonwealth files a motion pursuant to paragraph (A)(2)(a), see Rules 575 (Motions and Answers), 576 (Filing and Service by Parties), 577 (Procedures Following Filing of Motion).

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, in person on the record, about the request for a compelled examination. See Rule 119 (Use of Two-Way Simultaneous Audio-Video Communication in Criminal Proceedings). 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.

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.

Establishing a reasonable time frame and providing for the reciprocal disclosure are intended to further promote the fair handling of these cases. 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. When the defendant intends to introduce an expert’s psychiatric findings at the penalty phase of a death penalty case only, the disclosure may not take place until the penalty phase. See Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (2000) (the results of any examinations of the defendant by a Commonwealth’s expert must be sealed ‘‘until such time as the penalty phase commences and the defendant declares his intent to present his own psychiatric evidence in mitigation.’’)

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.

The procedures in paragraph (C) are similar to the existing procedures for protective orders in Rule 573(F).

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, 541 Pa. 188, 662 A.2d 610 (1995), Commonwealth v. Morley, 545 Pa. 420, 681 A.2d 1254 (1996), Commonwealth v. Szuchon, 548 Pa. 37, 693 A.2d 959 (1997), Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086 (1998), and Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (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

The sanctions authorized by paragraph (D) may be imposed 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.

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 Criminal Justice Mental Health Standards, 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, inter alia, procedures for conducting court-ordered examinations of a defendant when the defendant’s competency is an issue. The procedures in Section 7402 related to competency are distinct from the procedures set forth in this rule.

Official Note

Adopted January 27, 2006, effective August 1, 2006; Comment revised September 21, 2012, effective November 1, 2012.

Committee Explanatory Reports:

Final Report explaining the provisions of new Rule 569 governing the examination of the defendant by mental health experts published with the Court’s Order at 36 Pa.B. 700 (February 11, 2006).

Final Report explaining the September 21, 2012 revision of the Comment correcting a typographical error in the eighth paragraph published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

The provisions of this Rule 569 adopted January 27, 2006, effective August 1, 2006, 36 Pa.B. 694; amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247. Immediately preceding text appears at serial pages (361859) to (361862).