Arkansas Code of 1987 (2023) › Title 5 - CRIMINAL OFFENSES (§§ 5-1-101 — 5-79-101) › Subtitle 1 - GENERAL PROVISIONS (§§ 5-1-101 — 5-5-501) › Chapter 2 - PRINCIPLES OF CRIMINAL LIABILITY (§§ 5-2-201 — 5-2-622) › Subchapter 3 - MENTAL DISEASE OR DEFECT (§§ 5-2-301 — 5-2-332) › Section 5-2-327 - Examination of defendant - Fitness to proceed

(a)
(1)
Any party or the court may raise the issue of the defendant's fitness to proceed.
(2)
The court shall order an examination under this section if it finds there is a reasonable suspicion that a defendant is not fit to proceed.
(3)
(A)
Subject to §§
5-2-304
and
5-2-311
, the court shall immediately suspend further proceedings in a prosecution if it has ordered an examination under this section.
(B)
(i)
If a jury has been impaneled and the court suspends proceedings under subdivision (a)(3)(A) of this section, the court may retain the jury or declare a mistrial and discharge the jury.
(ii)
A discharge of the jury is not a bar to further prosecution.
(4)
If a court suspends further proceedings in the prosecution under subdivision (a)(3)(A) of this section, the court shall enter an order:
(A)
Appointing one (1) or more experts who do not practice in the Arkansas State Hospital to examine the defendant and report on the defendant's mental condition; or
(B)
(i)
Directing the Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services to provide an expert who will examine and report upon the defendant's mental condition.
(ii)
The director or his or her designee shall determine the location of the examination required under subdivision (a)(4)(B)(i) of this section.
(b)
An examination ordered under this section shall be for a period not exceeding sixty (60) days unless the director or his or her designee determines a longer period of examination is necessary for the purpose of the examination.
(c)
(1)
A uniform order to be used by a court ordering an examination of a defendant's fitness to proceed under this section shall be developed by the Administrative Office of the Courts in conjunction with the following organizations:
(A)
The Arkansas Prosecuting Attorneys Association;
(B)
The Department of Human Services; and
(C)
The Arkansas Public Defender Commission.
(2)
The uniform order developed under this subsection shall contain the following information:
(A)
The defendant's name, age, gender, and race;
(B)
The criminal charges pending against the defendant;
(C)
The defendant's attorney's name and address;
(D)
The defendant's custody status;
(E)
The case number for which the examination was ordered;
(F)
A unique identifying number on the incident reporting form as required by the Arkansas Crime Information Center; and
(G)
The name of the requesting attorney, if applicable.
(3)
An examination under this section shall not be conducted without using the uniform order required under this subsection.
(4)
The uniform order shall require the prosecuting attorney to provide to the examiner any information relevant to the examination, including without limitation:
(A)
The name and address of any attorney involved in the matter; and
(B)
Information about the alleged offense.
(5)
The court may require the attorney for the defendant to provide any available information relevant to the examination, including without limitation:
(A)
Psychiatric records;
(B)
Medical records; or
(C)
Records pertaining to treatment of the defendant for substance or alcohol abuse.
(d)
(1)
An examination report ordered under this section shall be filed with the clerk of the court ordering the examination and is a public record.
(2)
The court clerk shall provide copies of the examination report to the defendant's attorney and the prosecuting attorney.
(e)
(1)
An examination report prepared by an examiner ordered under this section shall:
(A)
Contain an opinion as to whether or not the defendant is fit to proceed and the basis for the opinion;
(B)
Contain an opinion as to whether the defendant has a mental disease or defect;
(C)
Contain a substantiated diagnosis in the terminology of the American Psychiatric Association's most current edition of the Diagnostic and Statistical Manual of Mental Disorders;
(D)
Document that the examiner explained to the defendant:
(i)
The purpose of the examination;
(ii)
The persons to whom the examination report is provided; and
(iii)
The limits on rules of confidentiality applying to the relationship between the examiner and the defendant; and
(E)
Describe, in specific terms:
(i)
The procedures, techniques, and tests used in the examination;
(ii)
The purpose of each procedure, technique, or test; and
(iii)
The conclusions reached.
(2)
An examiner's opinion on the defendant's fitness to proceed or lack of fitness to proceed may not be based solely on the defendant's refusal to communicate during the examination.
(3)
(A)
During an examination to determine a defendant's fitness to proceed and in any examination report based on that examination, an examiner shall consider:
(i)
The capacity of the defendant during criminal proceedings to:
(a)
Rationally understand the charges against him or her and the potential consequences of the pending criminal proceedings;
(b)
Disclose to the defendant's attorney pertinent facts, events, and states of mind;
(c)
Engage in a reasoned choice of legal strategies and options;
(d)
Understand the adversarial nature of criminal proceedings;
(e)
Exhibit appropriate courtroom behavior; and
(f)
Testify;
(ii)
As supported by current indications and the defendant's personal history, whether the defendant is a person with:
(a)
A mental disease or defect; or
(b)
An intellectual disability; and
(iii)
The degree of impairment resulting from the mental disease or defect or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with the defendant's attorney in an effective manner.
(B)
The information or lack of information contained in the examiner's report is not intended to limit the introduction of evidence regarding the defendant's fitness to proceed.
(f)
This subchapter does not preclude the defendant from having an examination conducted by an expert of the defendant's own choosing to determine the defendant's fitness to proceed, and the court shall provide the defendant's expert with a reasonable opportunity to examine the defendant upon a timely request.
(g)
When the defendant has previously been found fit to proceed, the court may order a second or subsequent examination to determine a defendant's fitness to proceed only if the court:
(1)
Finds reasonable cause to believe that new or previously undiscovered evidence calls into question the factual, legal, or scientific basis of the opinion upon which the previous finding of fitness relied;
(2)
Finds reasonable cause to believe that the defendant's mental condition has changed; or
(3)
Sets forth in the order a factual or legal basis upon which to order another examination.
(h)
Upon completion of examination under this section, the court may enter an order providing for further examination of the defendant and may order the defendant into the custody of the director for further examination and observation if the court determines that commitment and further examination are warranted.
Added by Act 2017, No. 472,§ 14, eff. 8/1/2017.