IV. ARRAIGNMENT AND PRETRIAL

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Rule 12.2: Notice of Insanity Defense or Expert Testimony of Defendant's Mental Condition.

(a) Defense of Insanity.

(1) Notice of Insanity Defense. A defendant who intends to assert a defense of insanity at the time of the alleged crime shall so notify the district attorney general in writing and file a copy of the notice with the clerk.

(2) Timing. Notice shall be given within the time provided for the filing of pretrial motions or at such later time as the court may direct. The court may, for cause shown, allow the defendant to file the notice late, grant additional trial-preparation time, or make other appropriate orders.

(3) Failure to File Notice. A defendant who fails to comply with the requirements of Rule 12.2(a)(1) may not raise an insanity defense.

(b) Expert Testimony of Defendant's Mental Condition.

(1) Notice of Expert Testimony. A defendant who intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of his or her guilt shall so notify the district attorney general in writing and file a copy of the notice with the clerk.

(2) Timing. Notice described in Rule 12.2(b)(1) shall be filed within the time provided for the filing of pretrial motions or at such later time as the court may direct. The court may, for cause shown, allow the defendant to file the notice late, grant additional trial-preparation time, or make other appropriate orders.

(c) Mental Examination of Defendant.

(1) Authority to Order Mental Examination. On motion of the district attorney general, the court may order the defendant to submit to a mental examination by a psychiatrist or other expert designated in the court order.

(2) Inadmissibility of Statements During Examination. No statement made by the defendant in the course of any examination conducted under this rule (whether conducted with or without the defendant’s consent), no testimony by the expert based on such statement, and no other fruits of the statement are admissible in evidence against the defendant in any criminal proceeding, except for impeachment purposes or on an issue concerning a mental condition on which the defendant has introduced testimony.

(d) Failure to Provide Notice of Expert Testimony or to Submit to Mental Examination. If a defendant fails to give notice under Rule 12.2(b) or does not submit to an examination ordered under Rule 12.2(c), the court may exclude the testimony of any expert witness offered by the defendant on the issue of the defendant's mental condition.

(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under Rule 12.2(a) or (b), later withdrawn, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.

(f) Reports of Competency Examinations. Prior to any hearing on competency to stand trial, the parties shall permit the opposite party, on request, to inspect and copy or photograph any results or reports of psychiatric, psychological, or mental examinations and of scientific tests or experiments made in connection with evaluating the defendant's competency to stand trial, or copies thereof, if:

(1) the item is within the party's possession, custody, or control; and

(2) the party intends to introduce any part of the item as evidence in the party's case-in-chief at the competency hearing; or

(3) the party intends to call as a witness at the competency hearing the person who prepared the report, and the results or reports relate to the witness' testimony. This provision does not limit the State's duty to disclose such information under other appropriate rules or the duty to produce exculpatory evidence. Disclosure under this provision shall occur at least 21 days prior to a hearing on competency to stand trial unless the court finds that a shorter time is essential in the interests of justice so as not to unduly delay the trial. The court may also make such orders as are necessary to compel disclosure or make other appropriate orders.

(g) Inadmissibility of Defendant's Statements During Competency Examination. No statement made by the defendant in the course of any examination relating to his or her competency to stand trial (whether conducted with or without the defendant's consent), no testimony by any expert based on such statement, and no other fruits of the statement are admissible in evidence against the defendant in any competency hearing or criminal proceeding except for impeachment purposes or an issue concerning a mental condition on which the defendant has introduced evidence of incompetency or evidence requiring notice under Tenn. R. Crim. P. 12.2(b).

Advisory Commission Comment.

Like Rule 12.1, Rule 12.2 is a part of the discovery package, and conforms to the somewhat similar federal rule.

The burden is upon the defendant to give notice of any defense based upon mental condition, without a triggering request from the state.

Rule 12.2(b) imposes a notice requirement on the defendant when expert witnesses are to testify as to the defendant's mental state. The commission approves the federal advisory committee notes which indicate that lack of notice about the defendant's mental state may seriously disadvantage the district attorney general in preparing possible rebuttal proof.

Rule 12.2(c) allows examination by other experts and not just a psychiatrist. Further, the exclusion of use of the defendant's statement in a state requested examination is expanded to sentencing as well as guilt. However, this is not intended to preclude impeachment of the defendant under traditional impeachment rules.

Advisory Commission Comments [2010].

New subsections (f) and (g) are taken from the temporary procedures in State v. Harrison, 270 S.W.3d 21 (Tenn. 2008). Competency to stand trial is an issue which should be raised at the earliest practical time. In most instances 21 days is sufficient time for expert and document disclosure, particularly where the hearing has been scheduled well in advance of trial. Occasionally a finding of competency may be subject to change such as where the defendant's mental state is fragile or the defendant's medication is altered. In such cases the court might need to revisit the competency issue; therefore another competency hearing might need to be conducted on the morning of trial. So as not to unduly delay the trial, the court might shorten the time for disclosure or require immediate disclosure as the circumstances of the case dictate. Note that State v. Reid, 981 S.W.2d166 (Tenn. 1998) may impose additional notice requirements for which advance disclosure may be required.

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