Rule 11.3. Appointment of experts; commitment for examination; reports; costs

Alabama Rules of Criminal Procedure

Rule 11. Incompetency and mental examinations.

Rule 11.3. Appointment of experts; commitment for examination; reports; costs.

(a)

GROUNDS FOR APPOINTMENT. If the circuit court determines that

reasonable grounds for an examination exist, it shall either appoint a psychiatrist

or psychologist to examine the defendant and to testify regarding the defendant’s

mental condition, or order that an examination be conducted by a psychiatrist or

psychologist appointed by the commissioner of the Department of Mental Health

and Mental Retardation.

Evaluations ordered to be performed by a psychiatrist or psychologist under

contract with or employed by the Department of Mental Health and Mental

Retardation shall be performed on an out-patient basis where feasible, and, where

necessary, the sheriff of the county in which criminal charges are pending shall be

responsible for the custody, care, and transportation of the defendant during the

out-patient visit.

(b)

COMMITMENT FOR EXAMINATION. The circuit court may order that a

defendant be examined in a state institution, and it may commit a defendant to the

Department of Mental Health and Mental Retardation for a reasonable period of

time necessary to conduct the examination if

(1)

the defendant cannot be examined on an out-patient basis; or

(2)

examination in an out-patient setting is unavailable; or

(3)

the appointed examiner reports that confinement for

evaluation is indispensable to a clinically valid diagnosis and report.

Provided, however, that a court may not order a defendant committed to the

Department of Mental Health and Mental Retardation for a time longer than that

reasonably necessary to conduct the examination.

examination in an out-patient setting is unavailable; or

(3)

the appointed examiner reports that confinement for

evaluation is indispensable to a clinically valid diagnosis and report.

Provided, however, that a court may not order a defendant committed to the

Department of Mental Health and Mental Retardation for a time longer than that

reasonably necessary to conduct the examination.

(c) REPORTS.

(1)

Any psychiatrist or psychologist appointed by the court or the

Department of Mental Health and Mental Retardation pursuant to this rule shall

submit to the circuit judge a report containing an opinion of whether the defendant

is “incompetent,” as that term is defined in Rule 11.1. The report may also include

such additional findings and opinions concerning whether the defendant’s mental

condition creates a present danger to the defendant or to others, as the

psychologist or psychiatrist signing the report may deem pertinent.

(2)

If the opinion is that the defendant is incompetent, the report shall

also state the psychologist’s or psychiatrist’s opinion of:

(i)

The condition causing the defendant’s incompetency and the

nature thereof;

(ii)

The treatment required for the defendant to attain

competency;

(iii)

The most appropriate form and place of treatment, in view of

the defendant’s therapeutic needs and potential danger to himself or

herself, or to others, and an explanation of appropriate treatment

alternatives;

(iv)

The likelihood of the defendant’s attaining competency under

treatment and the probable duration of the treatment; and

(v)

The availability of the various types of acceptable treatment in

the local geographic area, specifying the agencies or the settings in which

the treatment might be obtained and whether the treatment would be

available on an out-patient basis.

(3)

In addition, if the court so orders, the report shall contain a statement

of the psychiatrist’s or psychologist’s opinion of:

tment; and

(v)

The availability of the various types of acceptable treatment in

the local geographic area, specifying the agencies or the settings in which

the treatment might be obtained and whether the treatment would be

available on an out-patient basis.

(3)

In addition, if the court so orders, the report shall contain a statement

of the psychiatrist’s or psychologist’s opinion of:

(i)

The mental condition of the defendant at the time of the

alleged offense;

(ii)

If the psychiatrist’s or psychologist’s opinion is that at the time

of the alleged offense the defendant suffered from a mental disease or

defect, the relation, if any, of such disease or defect to the alleged offense;

and

(iii)

Such other matters as the court may deem appropriate.

(d)

ADDITIONAL EXPERT ASSISTANCE. The circuit court may, in its discretion,

appoint additional experts and may order the defendant to submit to physical,

neurological, or psychological examinations, when the court is advised by the

examining psychologist or psychiatrist that such examinations are necessary for

an adequate determination of the defendant’s mental condition.

(e)

COSTS. Reasonable fees and expenses incurred by persons

appointed by the court, other than employees of the State of Alabama, shall be

assessed as part of the costs of the proceeding. If the defendant is indigent, such

expenses shall be paid by the State as provided by law.

[Amended 10-1-96.]

Committee Comments to Rule 11.3 as Amended Effective October 1, 1996

Rule 11.3(a) provides that where “reasonable grounds” exist, the circuit

court must either appoint a psychiatrist or psychologist to examine the defendant

and to testify regarding the defendant’s mental condition or order such an

examination by a psychiatrist or psychologist appointed by the Department of

Mental Health and Mental Retardation. In Drope v. Missouri, 420 U.S. 162, 95 S.Ct

1996

Rule 11.3(a) provides that where “reasonable grounds” exist, the circuit

court must either appoint a psychiatrist or psychologist to examine the defendant

and to testify regarding the defendant’s mental condition or order such an

examination by a psychiatrist or psychologist appointed by the Department of

Mental Health and Mental Retardation. In Drope v. Missouri, 420 U.S. 162, 95 S.Ct.

896, 43 L.Ed.2d 103 (1975), the Supreme Court recognized the difficulties inherent

in making the threshold decision as to what facts constitute “reasonable grounds”

sufficient to require a competency examination. In Pate v. Robinson, 383 U.S. 375,

86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Court suggested that the judge should

consider, among other things, the defendant’s medical history, any evidence of

irrational behavior, and the defendant’s demeanor. See Ex parte Gordon, 556

So.2d 363 (Ala.1988). The standard set by the Court in Dusky v. United States,

362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), probably means that

competency requires only that the defendant be able to confer with counsel and

have some appreciation of the proceedings against the defendant and the

defendant’s involvement in them. The Dusky standard is one of degree, and it

recognizes that many defendants have mental or emotional problems that prevent

them from functioning normally in society but that the mere existence of an

emotional disturbance is not equivalent to incompetency. Inevitably, determinations

of competency or incompetency must be made on a case-bycase basis. Cf. Tillis

v. State, 292 Ala. 521, 296 So.2d 892 (1974).

This rule is consistent with Alabama law as it existed before these criminal

rules were adopted, inasmuch as Ala.Code 1975, § 15-16-21, authorized the trial

court to make a preliminary determination, without the aid of a jury, as to whether

reasonable grounds existed to doubt the defendant’s competency

be made on a case-bycase basis. Cf. Tillis

v. State, 292 Ala. 521, 296 So.2d 892 (1974).

This rule is consistent with Alabama law as it existed before these criminal

rules were adopted, inasmuch as Ala.Code 1975, § 15-16-21, authorized the trial

court to make a preliminary determination, without the aid of a jury, as to whether

reasonable grounds existed to doubt the defendant’s competency. Under this rule,

the trial court continues to act as a “screening agent” for mental examination

requests, and the determination of whether a mental evaluation is required is left

to the discretion of the trial court. Reese v. State, 549 So.2d 148

(Ala.Crim.App.1989), overruled in part on other grounds, Huntley v. State, 627

So.2d 1013 (Ala.1992).

The adoption of this rule worked a number of changes in Alabama practice.

Under the rule, the circuit court either appoints a psychiatrist or psychologist to

examine the defendant and to submit a report to the judge, or it utilizes the

personnel and facilities of the Department of Mental Health and Mental

Retardation, depending upon the availability of local resources. Subsection (a)

requires the appointment of a psychiatrist or psychologist. It is similar to 18 U.S.C.

§ 4241(b).

Rule 11.3(b) was moved by the October 1, 1996, amendment from Rule

11.2(d) and modified. It ensures that a defendant will not be subjected to

confinement in a mental institution, unless a less restrictive alternative (such as

local out-patient services of a community mental health center) is unavailable, and

it ensures that if a defendant is confined the confinement will be for only the

minimum time required to conduct necessary examinations. See 18 U.S.C. § 4244.

A court can commit a defendant for only the minimum time required to conduct the

necessary examinations

, unless a less restrictive alternative (such as

local out-patient services of a community mental health center) is unavailable, and

it ensures that if a defendant is confined the confinement will be for only the

minimum time required to conduct necessary examinations. See 18 U.S.C. § 4244.

A court can commit a defendant for only the minimum time required to conduct the

necessary examinations. Commitment for a time longer than that reasonably

required to conduct the examinations can be ordered only if the same stringent

standards for civil commitment provided in Title 22, Chapter 52, Ala.Code 1975,

are followed. See Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435

(1972), in which the United States Supreme Court struck down an Indiana statute

that authorized trial courts to commit a defendant for an indefinite period based

upon the defendant’s incompetency to stand trial. Given the availability of out-patient services, a defendant may be committed for evaluation only if such

confinement is determined to be indispensable to a clinically valid diagnosis and

report. Once an examination is completed, the examiner’s report shall be returned

to the court for the court to determine the conditions of release.

Rule 11.3(c) states the contents of the psychologist’s or psychiatrist’s report

and is patterned after Rule 464(h), Unif.R.Crim.P., and ABA Standards for Criminal

Justice, Criminal Justice Mental Health Standards 7-4.5 (2d ed. 1986)

agnosis and

report. Once an examination is completed, the examiner’s report shall be returned

to the court for the court to determine the conditions of release.

Rule 11.3(c) states the contents of the psychologist’s or psychiatrist’s report

and is patterned after Rule 464(h), Unif.R.Crim.P., and ABA Standards for Criminal

Justice, Criminal Justice Mental Health Standards 7-4.5 (2d ed. 1986).

If the psychiatrist’s or psychologist’s opinion is that the defendant is

incompetent to stand trial, then the psychiatrist or psychologist is directed to report

on several different items to aid the court or jury in making the complex decisions

required by Rule 11.6: the nature of the defendant’s incompetence; the likelihood

that the defendant may become competent; the professional’s recommendations

for treatment of the defendant’s mental condition, in view of the defendant’s

therapeutic needs and potential dangerousness; and an explanation of alternative

forms of treatment that would be acceptable and available for the defendant.

Because the Rule 11.3 examination is also intended to provide information

concerning a possible insanity defense, the psychologist or psychiatrist may be

required, pursuant to Rule 11.2(c)(3), to report on the mental status of the

defendant at the time of the alleged offense and on the relationship, if any, of any

mental defect or disease to the alleged criminal act.

Rule 11.3(c)(3) was not intended to establish a new legal test for insanity. It

was not intended to change the tests that were in use before these criminal rules

were adopted. It merely requires the psychiatrist or psychologist to describe the

defendant’s mental condition in broad medical language; the psychiatrist or

psychologist should avoid references to any definition of legal insanity

Rule 11.3(c)(3) was not intended to establish a new legal test for insanity. It

was not intended to change the tests that were in use before these criminal rules

were adopted. It merely requires the psychiatrist or psychologist to describe the

defendant’s mental condition in broad medical language; the psychiatrist or

psychologist should avoid references to any definition of legal insanity. Whether a

person is mentally ill is a medical judgment that a psychologist or psychiatrist

should make; whether the defendant is sufficiently ill to be exonerated of criminal

responsibility, i.e., whether the defendant is legally insane, is a legal judgment for

the jury or trier of fact to make after proper instructions.

In some circumstances, either the psychiatrist or the psychologist or the

circuit court may desire the assistance of other experts to carry out physical,

neurological, or psychological tests. Subsection (d) authorizes the court to appoint

additional psychologists or psychiatrists and to order the defendant to undergo

further examinations and tests. The reports of these psychiatrists or psychologists

should include the required information and should be submitted to the court along

with those of the other appointed examiners.

Subsection (e) expressly provides for payment of the expenses of such

professionals by the State in indigency cases, within limits provided by law. See,

e.g., Ala.Code 1975, § 15-12-21(d), which authorizes reimbursement of defense

counsel for expenses reasonably incurred (which can include expenses related to

psychiatrists, experts, mental health professionals, investigators, and others), if

approved in advance by the trial court. The exclusion of reimbursement of fees and

expenses of State employees, applicable in all cases, is not intended to be

discriminatory, but rather presupposes that such services will be rendered as part

of their job and that expenses incurred will be reimbursed by the Department of

Mental Health and Mental Retardation

nals, investigators, and others), if

approved in advance by the trial court. The exclusion of reimbursement of fees and

expenses of State employees, applicable in all cases, is not intended to be

discriminatory, but rather presupposes that such services will be rendered as part

of their job and that expenses incurred will be reimbursed by the Department of

Mental Health and Mental Retardation.

It should be noted that the holding in Ake v. Oklahoma, 470 U.S. 68, 105

S.Ct. 1087, 84 L.Ed.2d 53 (1985), that an indigent defendant is constitutionally

entitled to a psychiatrist provided at State expense, is applicable only where the

defendant demonstrates to the trial judge that the defendant’s sanity (or insanity)

at the time of the offense is to be a significant factor at trial or that the defendant’s

mental state is to be a significant factor. Where a defense consultant psychologist

or psychiatrist is constitutionally required, such an expert may be appointed under

Rule 11.3(a). Ake, supra, 470 U.S. at 86, 105 S.Ct. at 1099, 84 L.Ed.2d at 68; Isom

v. State, 488 So.2d 12, 13 (Ala.Crim.App.1986); Holmes v. State, 505 So.2d 1308

(Ala.Crim.App.1987).

See

also

Nelson

v.

State,

511

So.2d

225

(Ala.Crim.App.1986), aff’d, 511 So.2d 248 (Ala.1987), cert. denied, 486 U.S. 1017,

108 S.Ct. 1755, 100 L.Ed.2d 217 (1988); and Whittle v. State, 518 So.2d 793

(Ala.Crim.App.1987).