RULE 12.2 NOTICE OF DEFENSE BASED ON MENTAL CONDITION
Effective Date: 1/1/1988
Obsolete Date: 3/1/2006
(a) Defense of Lack of Criminal Responsibility by Reason of Mental Disease or Defect. 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 offense, the defendant, within the time provided for the filing of pretrial motions or at such later time as the court 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, the defense of lack of criminal responsibility may not be raised. The court for cause shown may allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.
(b) Mental Disease or Defect Inconsistent With the Mental Element Required for the Offense Charged. If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether the defendant had the mental state required for the offense charged, the defendant, within the time provided for the filing of pretrial motions or at such later time as the court may direct, shall notify the prosecuting attorney of that intention and file the notice. The court for cause shown may allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.
(c) Psychiatric Examination. In an appropriate case the court, 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. No statement made by the accused in the course of any examination provided for by this rule, whether the examination is with or without the consent of the accused, shall be admitted in evidence against the accused in any criminal, civil, or administrative proceeding.
(d) Failure to Comply. If there is a failure to give notice when required by subdivision (b) or to submit to an examination when ordered under subdivision (c), the court may exclude the testimony of any expert witness offered by the defendant on the issue of the defendant's mental state.
(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under subdivision (a) or (b), later withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention.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.