Section 842. Examination of the Defendant by Mental Health Expert

(A) EXAMINATION OF DEFENDANT

(1) BY AGREEMENT

(a) The defendant, the 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 for the purpose of determining mental retardation that would preclude imposition of a sentence of death.

(b) The agreement shall be in writing and signed by the defendant, the 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) If the defendant has provided notice of mental retardation that would preclude the imposition of a sentence of death or notice of intention to introduce expert evidence relating to mental retardation that would preclude imposition of a sentence of death, upon motion of the attorney for the Commonwealth, 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 condition of mental retardation 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 the 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 condition of mental retardation must prepare a written report. No mental health expert may be called to testify concerning the defendant’s condition of mental retardation 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, if the court determines there has been a failure to comply with this rule, upon motion or sua sponte, 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), in cases in which the defendant’s mental retardation has been raised to preclude the imposition of a sentence of death.

‘‘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 retardation.

Examination of Defendant

Paragraph (A)(1) is intended to encourage the defendant, the 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, the 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.

It is intended that the examining mental health expert(s), whether appointed pursuant to the agreement of the parties or order of court, 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 retardation.

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-Visual 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 the defendant’s mental condition specifically with regard to mental retardation. 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 retardation.

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 retardation. The reports must be in writing, and should comply with the content requirements in paragraph (A)(2)(d). An expert witness, whether or not the expert witness has examined the defendant, 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.

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).

Because the question of whether the imposition of a sentence of death is precluded due to the defendant’s mental retardation ordinarily is a question reserved for sentencing, use of information obtained from the examination of a defendant by a Commonwealth’s expert is not to be disclosed or used until after the defendant has been found guilty. This may require that the Commonwealth’s examination should be sealed until the penalty phase of the defendant’s trial takes place. See Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (2000). However, where the parties have agreed to a pretrial determination of the issue pursuant to Rule 843, earlier disclosure may be required.

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, the 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 condition, 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.

Official Note

New Rule 842 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 842 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.