Section 841. Notice of Mental Retardation Precluding Imposition of Sentence of Death

(A) Notice of Mental Retardation Precluding Imposition of a Sentence of Death

A defendant who intends to offer evidence of mental retardation that would preclude the imposition of a sentence of death shall file with the clerk of courts not later than 90 days after arraignment, or within such other time as allowed by the court upon cause shown, a notice of the intention to offer the evidence and certification of service on the attorney for the Commonwealth.

(1) The notice and certification shall be signed by the attorney for the defendant or the defendant if unrepresented.

(2) The notice shall contain specific available information as to the nature and extent of the alleged mental retardation and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call to establish mental retardation.

(B) Notice of Expert Evidence of Mental Retardation

A defendant who intends to introduce expert evidence relating to mental retardation that would preclude imposition of a sentence of death shall file with the clerk of courts not later than 90 days after arraignment, or within such other time as allowed by the court upon cause shown, a notice of the intention to offer the expert evidence and a certification of service on the attorney for the Commonwealth.

(1) The notice and certification shall be signed by the attorney for the defendant or the defendant if unrepresented.

(2) The notice shall contain specific available information as to the nature and extent of the alleged mental retardation, and the names and addresses of the expert witness(es) whose evidence the defendant intends to introduce.

(C) Reciprocal Notice of Witnesses

Within 30 days after receipt of the defendant’s notice of mental retardation that would preclude the imposition of a sentence of death or notice of expert evidence of mental retardation or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall file and serve upon the defendant’s attorney, or the defendant if unrepresented, written notice of the names and addresses of all witnesses the attorney for the Commonwealth intends to call to disprove or discredit the defendant’s claim of mental retardation.

(D) If prior to or during trial a party learns of an additional witness or additional information which, if known, should have been included in the notice furnished under paragraphs (A), (B), or (C), the party shall promptly notify the other party’s attorney, or if unrepresented, the other party, of the existence and identity of such additional witness.

(E) After docketing the notice, the clerk of courts immediately shall transmit the notice to the trial judge.

Comment

This rule sets forth the notice procedures when a defendant intends to assert his or her mental retardation to preclude imposition of the death penalty pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) and Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011). Notices filed in accordance with this rule fall within the definition of ‘‘motion’’ in Rule 575 and must comply with the provisions of Rules 575 and 576.

The requirement in paragraph (B) for a separate notice of intention to introduce expert evidence is intended to alert the Commonwealth that there will be expert evidence. See Rule 842 regarding the requirement that any expert who has examined the defendant must 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.

Paragraph (E) emphasizes the requirement that the trial judge be informed of the filing of the notice at the earliest time to ensure the prompt collection of all materials relevant to the issue of the defendant’s mental retardation.

Nothing in this rule precludes the trial judge from raising the issue of the defendant’s mental retardation sua sponte.

Official Note

New Rule 841 adopted July 31, 2013, effective October 1, 2013.

Committee Explanatory Reports:

Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

The provisions of this Rule 841 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.