BLOG BULLETS:

• The government’s right to a mental health examination of the defendant when the defense gives notice of expert testimony about the defendant’s mental health condition under Rule 12.2 is an absolute right only when the notice is of an actual insanity defense; otherwise, the court has discretion to either order or not order an examination.
• The government doesn’t get to choose the expert if an examination is ordered under Rule 12.2; rather, it’s the court that chooses the expert.
• Think about using these arguments to either completely prevent a court-ordered examination or negotiate the designation of a mutually acceptable expert rather than a government-designated hack.

NOW THE BLOG:

A Supreme Court case recently came to my attention that brought to mind some issues regarding compelled mental health examinations such as those which can be ordered under Rule 12.2(c) of the Federal Rules of Criminal Procedure when a defendant gives either notice under Rule 12.2(a) of an insanity defense or notice under Rule 12.2(b) of intent to introduce expert testimony about some other aspect of the defendant’s mental condition. The case was Kansas v. Cheever, 134 S. Ct. 596 (2013), which held – really just reaffirmed a prior holding – that it does not violate the Fifth Amendment for a court to order a defendant presenting evidence of his mental health condition to submit to a mental health examination by a government expert whom the government can then call as a rebuttal witness.

This brought to mind a couple of limits created by Rule 12.2 and the implications of those limits that I’m not sure are self-evident. At least I didn’t find them self-evident until I looked more carefully at the rule and related case law. One I’ll talk about in this week’s post and another in a second post next week.

The first limit – actually a couple of limits – are on the government’s right to an examination. To start, it has an absolute right to an examination only when the defendant gives notice under Rule 12.2(a) that he is presenting an actual defense of insanity, presumably as provided for in 18 U.S.C. § 17. If the defendant gives notice under Rule 12.2(b) that he is offering expert testimony about the defendant’s mental health condition for some other purpose, the court may order an examination but is not required to. This is made clear by the contrasting language in Rule 12.2(c)(1)(B):

If the defendant provides notice under Rule 12.2(a), the court must, upon the government’s motion, order the defendant to be examined under 18 U.S.C. § 4242. If the defendant provides notice under Rule 12.2(b) the courtmay, upon the government’s motion, order the defendant to be examined under procedures ordered by the court.

Fed. R. Crim. Pro. 12.2(c)(1)(B) (emphasis added).

There may be good reasons to decline to order an examination for the government, moreover. I made that argument in a case in which I was considering calling a mental health expert to testify to my client’s susceptibility to entrapment, in an opposition to a government application which I’m attachinghere. I found there were several examples of district court opinions in which such examinations had in fact been denied. One of those opinions articulated the following rather reasonable explanation:

This Court is not convinced that the disadvantage asserted by the government in this case may not be overcome without compelling the defendant’s examination. Although stated in connection with a discussion of the scope of authority under Rule 12.2, the court finds the sentiment expressed in [United States v.] Marenghi[, 893 F. Supp. 85 (D. Maine 1995)] to be applicable with respect to the use of inherent authority under the circumstances present in this case:

This Court, however, is loathe to submit Defendant to a psychiatric examination against [his] will in the absence of express statutory or administrative authority. . . . The fact that such an examination will assist the Government, which has the greater burden of proof on the mens rea issue, does not provide a basis for this Court to help “even the playing field.”

United States v. Towns, 19 F. Supp. 2d 64, 67 (W.D.N.Y. 1998) (quoting Marenghi, 893 F. Supp. at 98). See also United States v. Akers, 945 F. Supp. 1442, 1449 (D. Colo. 1996) (noting that government could rebut testimony of defense expert witness in other ways, including retaining its own expert to review, assess, and testify about defense expert’s report and/or calling lay witnesses to rebut expert’s testimony about defendant’s characteristics).

The government also isn’t entitled to choose the expert who will conduct any examination ordered under Rule 12.2(c)(1)(B). As to the examination the court must order when notice of an insanity defense is given under Rule 12.2(a), Rule 12.2(c)(1)(B) requires the court to “order the defendant to be examined under 18 U.S.C. § 4242.” Fed. R. Crim. Pro. 12.2(c)(1)(B). See also Fed. R. Crim. Pro. 12.2 advisory committee’s note (2002 amendment) (“As currently provided in the rule, if the examination is being ordered in connection with the defendant’s stated intent to present an insanity defense, the procedures are dictated by 18 U.S.C. § 4242.”). That statute provides that the examination be conducted pursuant to 18 U.S.C. § 4247(b), which in turn provides that “[e]ach examiner shall be designated by the court,” not chosen by the government. And the provision of Rule 12.2(c)(1)(B) permitting a court to order an examination when notice of non-insanity mental health evidence is given under Rule 12.2(b) provides for an “examin[ation] under procedures ordered by the court,” Fed. R. Crim. Pro. 12.2(c)(1)(B), which the advisory committee note suggests “may certainly be informed by other provisions [such as those in] 18 U.S.C. § 4241 et seq.,” Fed. R. Crim. Pro. 12.2 advisory committee’s note (2002 amendment).

To sum up, if you’ve given only notice of expert testimony on a non-insanity mental health issue under Rule 12.2, you don’t need to just roll over and concede the government is entitled to its own mental health examination by an expert it chooses. So think about making the arguments I describe above. Alternatively, if you want to appear reasonable and you’re worried more about a particularly biased government expert, you might propose a compromise. Tell the government you’ll give up your argument that it’s entitled to no examination at all if it agrees on a mutually acceptable expert for the court-ordered examination. What approach to take will obviously depend on the case, but do be aware of the options.