RULE 12.2 NOTICE OF DEFENSE BASED ON MENTAL CONDITION; MENTAL EXAMINATION
Effective Date: 3/1/2022
(a) Notice of Lack of Criminal Responsibility by Reason of Mental Disease or Defect Defense. A defendant who intends to assert a defense of lack of criminal responsibility by reason of mental disease or defect at the time of the alleged offense must so notify the prosecuting attorney in writing and file the notice within the time provided for filing a pretrial motion or at any later time the court sets. A defendant who fails to do so cannot later rely on the defense of lack of criminal responsibility. The court may, for good cause, allow the defendant to file the notice late, grant additional trial-preparation time, or make 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 evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of whether the defendant had the mental state required for the offense charged, the defendant must—within the time provided for filing a pretrial motion or at any later time the court sets—notify the prosecuting attorney in writing of this intention and file the notice. The court may, for good cause, allow the defendant to file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders.
(c) Mental Examination.
(1) Authority to Order an Examination; Procedures. In an appropriate case the court may, upon motion of the prosecuting attorney, 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 a defendant in the course of any examination conducted under this rule (whether conducted with or without the defendant's consent), no testimony based on the statement, and no other fruits of the statement may 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 to give notice under Rule 12.2(b) or does not submit to an examination when ordered under Rule 12.2(c), the court may exclude any expert evidence from the defendant on the issue of the defendant's mental 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 Rule 12.2(a) or (b), later withdrawn, is not, in any civil, 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. The explanatory note was amended March 1, 2022.
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.
Rule 12.2 is an adaption 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.
When Rule 12.2 was originally promulgated in 1973, it was adapted from the proposed federal rule. Subsequently, several amendments were made to the proposed federal rule before it was adopted. These are now substantially incorporated into 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 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 track 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.
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 made by the defendant during the course of the examination, or any fruits of those statements, 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.
Subdivision (d) provides that failure to give notice under subdivision (b) or submit to examination may result in the exclusion of any testimony by defendant's expert witness.
Subdivision (e) was adopted, effective January 1, 1988, and provides that evidence of an intention of which notice was given under subdivision (a) or (b), which is later withdrawn, is not in any civil, criminal or administrative proceeding, admissible against the person who gave said notice.
SOURCES: Joint Procedure Committee Minutes of September 24, 2020, page 7; January 27-28, 2005, pages 8-11; 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. 12.2.
STATUTES AFFECTED:
CONSIDERED: N.D.C.C. ch. 12.1-04.1 (Criminal Responsibility and Post-Trial Responsibility Act).
SUPERSEDED: N.D.C.C. § 12.1-04-05.