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
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
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
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
Psychiatric Mental Examination.
(1) Authority to Order an Examination; Procedures. In an appropriate case the
upon motion of the prosecuting attorney,
may order the defendant to submit to
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
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
(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
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; March 1, 2006.
Rule 12.2 is an adaption
to of 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 March 1, 2006, 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
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
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
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
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,
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
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
Subdivision (e) was adopted, effective January 1, 1988, and provides that evidence of an
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 8-11;
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);
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)
12.1-04.1 (Criminal Responsibility and Post-trial Responsibility Act).