RULE 12.2. NOTICE OF DEFENSE BASED ON MENTAL CONDITION;
Defense Notice of Lack of Criminal Responsibility by Reason of Mental Disease or Defect Defense. If a A defendant who intends to rely upon the assert a defense of lack of criminal responsibility by reason of mental disease or defect at the time of the alleged offense , the defendant, must so notify the prosecuting attorney in writing and file the notice within the time provided for the filing of a pretrial motion s, or at such any later time as the court sets. may direct, shall notify the prosecuting attorney of that intention in open court or in writing and file the notice. If there is a failure to comply with the requirements of this subdivision, A defendant who fails to do so cannot later rely on the defense of lack of criminal responsibility may not be raised. The court may, for good cause, shown may allow the defendant late filing of to file the notice late, or grant additional trial-preparation time, to the parties to prepare for trial or make such other order as may be other appropriate orders.
(b) Notice of Expert Evidence of Mental Disease or Defect Inconsistent With the Mental Element Required for the Offense Charged. If a defendant intends to introduce expert
testimony evidence relating to a mental disease , or defect , or any other mental condition of the defendant bearing upon on the issue of whether the defendant had the mental state required for the offense charged, the defendant must , -- within the time provided for the filing of a pretrial motion s or at such any later time as the court sets may direct, -- shall notify the prosecuting attorney in writing of that this intention and file the notice. The court may, for good cause, shown may allow the defendant to file the notice late, filing of the notice or grant the parties additional trial-preparation time, to the parties to prepare for trial or make such other order as may be appropriate orders.
Psychiatric Mental Examination.
(1) Authority to Order an Examination; Procedures. In an appropriate case the court may, upon motion of the prosecuting attorney,
may order the defendant to submit to an examination by one or more mental health professionals retained by the prosecuting attorney.
(2) Inadmissibility of a Defendant's Statements. No statement made by
the accused a defendant in the course of any examination provided for by conducted under this rule , (whether the examination is conducted with or without the defendant's consent) of the accused, no testimony based on the statement, and no other fruits of the statement may shall be admitted in evidence against the accused in any criminal, civil, or administrative proceeding except on an issue regarding mental condition on which the defendant has introduced evidence.
(d) Failure to Comply. If the defendant fails
there is a failure to give notice when required by subdivision (b) under Rule 12.2(b) or to does not submit to an examination when ordered under subdivision (c) Rule 12.2 (c), the court may exclude the testimony of any expert witness evidence offered by from the defendant on the issue of the defendant's mental state disease, mental defect, or any other mental condition bearing on the defendant's guilt.
(e) Inadmissibility of Withdrawn Intention. Evidence of an intention
as to of which notice was given under subdivision (a) or (b) Rule 12.2 (a) or (b), later withdrawn, is not, in any civil, or criminal, or administrative proceeding, admissible against the person who gave notice of the intention.
Rule 12.2 was amended, effective January 1, 1980; January 1, 1988; March 1, 1990; __________
Rule 12.2 is an adaption to Fed.R.Crim.P. 12.2, and was amended, effective January 1, 1988, to track the Federal 1984 and 1985 amendments. Subdivisions (a), (b) and (d) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 12.2 was amended, effective ______________, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
N.D.R.Crim.P. Rule 12.2 was originally promulgated in 1973, it was adapted from the proposed Federal Rule federal rule. Subsequently, several amendments were made to the proposed Federal Rule federal rule before it was adopted. These are now substantially incorporated into this rule Rule 12.2.
Several amendments effective January 1, 1980, were made to this rule, with a twofold purpose. Several of the changes brought the rule into substantial conformity with the then present Fed.R.Crim.P. 12.2. The remainder of the changes were necessary to comply with statutory changes.
Subdivision (a) requires a defendant intending to rely on the defense of lack of criminal responsibility to notify the prosecution of the defendant's intention in
open court or in writing, within a specified time, and to file the notice. If no notice is given, the defendant is prohibited from raising the defense. Subdivision (a) was amended, effective January 1, 1988, to change the phrase "if a defendant intends to rely upon the defense of lack of criminal responsibility by reason of mental disease or defect at the time of the alleged crime," by deleting the word crime and inserting offense. This change track s the 1984 amendment to Fed.R.Crim.P. 12.2.
Subdivision (b) is intended to deal with the issue of expert testimony bearing upon the issue of whether the defendant had the
"mental state required for the offense charged. " It provides that the defendant must give pretrial notice when the defendant intends to introduce such evidence. Rule 12.2(b), Fed.R.Civ.P., was amended in 1984, however, this amendment was not adopted. Subdivision Paragraph (c)(1) provides for examination of the defendant by one or more mental health professionals retained by the prosecuting attorney when the defendant has raised the issue under this rule. Under paragraph (C)(2), Statements statements made by the defendant during the course of the examination, or any fruits of those statements, shall may not be used as evidence in any proceeding. Subdivision (c) was amended, effective January 1, 1988, to change a psychiatric examination by a psychiatrist designated by court order to an examination by one or more mental health professionals retained by the prosecuting attorney, which tracks N.D.C.C. § 12.1-04.1-05. The change also tracks the 1984 amendment to Fed.R.Crim.P. 12.2, with the exception that the reference to the federal statute was deleted and language was substituted to follow N.D.C.C. § 12.1-04.1-05.
Failure to give notice under subdivision (b) or submit to examination may result in the exclusion of any testimony by defendant's expert witness, as provided in subdivision (d).
Subdivision (d) was not amended to track the 1984 Federal amendment to Fed.R.Civ.P. 12.2(d).
Subdivision (e) was adopted, effective January 1, 1988, and provides that evidence of an intention
as to of which notice was given under subdivision (a) or (b), which is later withdrawn, is not in any civil, or criminal or administrative proceeding, admissible against the person who gave said notice.
All references to "insanity" have been deleted from the rule. The current test is found in N.D.C.C. § 12.1-04.1-01 which sets the standards for lack of criminal responsibility by reason of mental disease or defect.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages ____; April 20, 1989, page 4; December 3, 1987, page 15; January 23, 1986, pages 4-7; October 30-31, 1980, page 31; January 25-26, 1979, pages 4-5; December 7-8, 1978, pages 32-33; October 12-13, 1978, page 2; June 26-27, 1972, pages 1-2; May 11-12, 1972, pages 14-15;
Fed.R.Crim.P., Proposed Amendment, Preliminary Draft, 52 F.R.D. 435 (1971); Fed.R.Crim.P. 12.2.
CONSIDERED: N.D.C.C. §§ 12-02-01(4), 12-05-03, 29-20-02, 29-20-03, 29-20-04, 29-20-05.
SUPERSEDED: N.D.C.C. § 12.1-04-05.
State v. Barry 11 N.D. 428, 92 N.W. 809 (1902) N.D.C.C. Ch. 12.1-04.1 (Criminal Responsibility and Post-trial Responsibility Act).