Roles of mental health and mental retardation professionals in the criminal process a Identification of appropriate roles. Mental health and mental retardation professionals serve the administration of criminal justice by offering expert opinions and testimony within their respective areas of expertise concerning present scientific or clinical knowledge; by evaluating and offering expert opinions and testimony on the mental condition of defendants and witnesses; by providing consultation to the prosecution or defense concerning the conduct of individual cases; and by providing treatment and habilitation for persons charged with or convicted of crimes.
Because these roles involve differing and sometimes conflicting obligations and functions, these professionals as well as courts, attorneys, and criminal justice agencies should clarify the nature and limitations of these respective roles. The professional's performance within these roles should be limited to the individual professional's area of expertise and should be consistent with that professional's ethical principles. In offering expert opinions and testimony concerning present scientific or clinical knowledge and in evaluating and offering expert opinions and testimony on the mental condition of criminal defendants, the mental health or mental retardation professional, no matter by whom retained, should function objectively within the professional's area of expertise.
The qualifications of a mental health or mental retardation professional to offer expert testimony on present scientific or clinical knowledge are established in standard In evaluating the mental condition of a defendant or witness, the professional has an obligation to make a thorough assessment based on sound evaluative methods and to reach an objective opinion on each specific matter referred for evaluation.
Disclosure of information obtained during the evaluation is governed by limitations set forth in standards The qualifications of a professional to serve as a court-appointed evaluator are established in standard The qualifications of a professional to offer expert testimony about a person's mental condition are established in standard Presentation of expert testimony is governed by standard When providing consultation and advice to the prosecution or defense on the preparation or conduct of the case, the mental health or mental retardation professional has the same obligations and immunities as any member of the prosecution or defense team.
Nevertheless, the prosecutor and defense counsel should respect the professional's ethical and professional standards. Any attempt by an attorney to compromise the professional's standards would constitute unprofessional conduct. When providing treatment or habilitation for a person charged with or convicted of a crime, the mental health or mental retardation professional's obligations to the person and to society derive primarily from those arising out of the treatment or habilitative relationship.
Consistent with institutional security requirements, correctional and mental health or mental retardation facilities should not interfere with that traditional professional relationship. Any limitation on the professional relationship owing to the individual's involvement in the criminal process or placement in an institutional setting should be precisely defined and explained to the individual at the time the professional relationship is established.
Joint professional obligations for improving the administration of justice in criminal cases involving mental health or mental retardation issues a National, state, and local judicial, legal, and mental health and mental retardation agencies and professional organizations have an obligation to work cooperatively to monitor the interdependent performance within the criminal process of their members and constituents and to improve the overall quality of the administration of justice in criminal cases involving mental health and mental retardation issues.
Existing professional ethics boards and committees should develop specific criteria and special review procedures designed to address the unique ethical questions that arise when mental health and mental retardation professionals participate in the criminal process. Education and training a Interdisciplinary cooperation. Judicial, legal, and mental health and mental retardation professional associations, organizations, and institutions at national, state, and local levels should cooperate in promoting, designing, and offering basic and advanced programs on the participation of mental health and mental retardation professionals in the criminal process to judges, attorneys, mental health and mental retardation professionals, and to students within these disciplines.
When it is appropriate in view of the curricular framework, a law school should consider offering advanced courses on mental health and mental retardation law and mental health and mental retardation professional participation in the criminal process for students who desire to concentrate on criminal law practice.
Prosecutors, public defenders, and other attorneys who specialize in, or regularly practice, criminal law should participate in these programs. Each jurisdiction's highest appellate tribunal or its judicial supervisory authority with responsibility for continuing judicial education should develop and regularly conduct programs on the participation of mental health and mental retardation professionals in the criminal process. Judges who preside over criminal trials should participate in these programs.
A enable those professionals to meet the minimum criteria established by standard Mental health and mental retardation professionals who participate in the criminal process should enroll in these programs. Classes of mentally ill and mentally retarded persons subject to police emergency detention a Authority for the police to take mentally ill and mentally retarded persons into custody in emergency situations should be statutorily defined and limited to the following two classes of persons: Wherever feasible, transportation should be to a mental health, mental retardation, or medical facility.
This dependence is an explicit recognition of the fact that the police role in dealing with mentally ill and mentally retarded persons is a limited one. Development of joint policy admitting persons detained by police for mental evaluation a In every jurisdiction police officials and administrators of mental health, mental retardation, and medical facilities should cooperate in developing joint guidelines and policies regarding the admission of persons in police custody for appropriate evaluation, treatment, or habilitation.
The joint guidelines should be widely disseminated to police, mental health, mental retardation, and medical facility personnel. The guidelines should provide for routine notification to police administrators and other appropriate officials when facility officials decline to accept a person in police custody for evaluation, treatment, or habilitation.
Policy preference for voluntary police disposition Even where the law authorizes custodial intervention for the purpose of transporting a person to a mental health, mental retardation, or medical facility, police departmental guidelines should nonetheless stress a preference for a voluntary disposition.
Such guidelines should require police officers, whenever feasible, to negotiate a voluntary disposition, particularly when a mentally ill or mentally retarded person is living with others and does not appear to be dangerous.
In some cases, police action to summon the assistance of the person's friends or relatives will be adequate. In others, referral to a community mental health, community mental retardation, or other appropriate community facility may be required. Use of force in mental health emergency interventions a Police departmental guidelines should stipulate that when custodial disposition is appropriate police should use only the force reasonably necessary to effect such custody, taking into consideration the obligation of the police to protect the mentally ill or mentally retarded person, themselves, and others from bodily harm.
Custodial processing of mentally ill or mentally retarded persons a When police custody of a mentally ill or mentally retarded person is based exclusively on either noncriminal behavior or minor criminal behavior, the police should either transport the person to an appropriate facility for evaluation or negotiate a voluntary disposition as provided for in standard In those cases, and as soon as possible following arrest, the police should arrange for a mental health or mental retardation professional to provide evaluation, treatment, or habilitation.
This written record will preserve the arresting officer's observations for appropriate reference in conjunction with any future proceedings. Postarrest obligations of police and custodial personnel a It is the responsibility of custodial officials to ensure that mental health and mental retardation services are provided for detainees.
To this end, and pursuant to the provisions of standard Such official, after promptly confirming the need to do so, should summon a mental health or mental retardation professional to provide emergency evaluation, treatment, or habilitation. Arresting and custodial officers and other personnel are obliged to report these observations even in cases where the detainee's conduct, demeanor, or behavior does not fall within the classifications for emergency detention described in standard Treatment or habilitation of detainees; voluntary and involuntary transfer; notice to counsel a A detainee who is able to make informed decisions regarding the need for treatment or habilitation and who requests or consents to such services may be treated in the detention or holding facility or may be transferred to a mental health, mental retardation, or other appropriate facility in conformity with the statutes or rules governing voluntary mental health treatment and hospitalization.
An involuntary transfer hearing should be initiated not later than [forty-eight] hours after an emergency transfer is effected. When possible, this notice should precede detainee's transfer. Specialized training a All agencies should provide specialized training to their personnel to assist them in identifying and responding to incidents involving mentally ill or mentally retarded persons.
Mental health and mental retardation professionals should be routinely consulted regarding curriculum preparation and training material selection. To the extent feasible police administrators should obtain qualified professionals to serve as instructors for recruit and in-service training programs.
In addition, promotional examinations should test each candidate's knowledge concerning the characteristics of such persons and the resolution of emergency situations. Emphasis should be placed on those symptoms and behaviors that arise or are aggravated by the fact of incarceration, particularly as they relate to suicide prevention. Explicit guidelines for responding to emergency situations, providing first aid, and preventing individuals with suicidal tendencies from harming themselves should be published and made available to all facility personnel.
Police and custodial records of contacts with mentally ill or mentally retarded persons a Records of significant contacts with mentally ill or mentally retarded persons who are not charged with crime should be filed separately from arrest records and should be subject to a high degree of confidentiality. Custodial personnel, including supervisory personnel, may not examine these records without prior authorization of the detainee or the detainee's attorney.
However, whenever a mental health or mental retardation professional concludes that the detainee presents an imminent risk of serious danger to another person, is imminently suicidal, or otherwise needs emergency treatment or habilitative intervention, the evaluator should notify the person in charge of the institution.
Authority to obtain mental evaluations a Evaluations of defendant's competency to stand trial are governed by part IV of this chapter. Evaluations of other present competency issues are governed by part V of this chapter. Law enforcement and prosecution authorities may not seek or obtain a pretrial mental health or mental retardation professional interview or mental evaluation of a person who is the subject of a criminal investigation but who has not yet been taken into custody or arrested.
Law enforcement and prosecution authorities may seek and obtain a pretrial mental health or mental retardation professional interview or evaluation of a person who has been taken into custody or arrested only if such interview or evaluation is otherwise permitted under existing law and i has been authorized by that person's attorney; or ii has been ordered by a court pursuant to paragraphs a or c ; or, iii is conducted either for the sole purpose of diverting the person from the criminal process or for the sole purpose of determining whether emergency mental health treatment or habilitation is warranted, in a situation in which law enforcement or prosecution authorities have reasonable, articulable grounds to believe that the person needs immediate mental health treatment or habilitation.
In all cases in which a pretrial mental health or mental retardation professional interview or mental evaluation is conducted pursuant to paragraph d , the person's attorney should be informed, whenever possible in advance, of the interview or evaluation and should receive a written report containing all information and opinions based on such interview or evaluation that were supplied orally or in writing to the law enforcement or prosecution authorities.
Evaluations of the current mental condition of persons found not guilty by reason of mental nonresponsibility [insanity] are governed by standard Presentence evaluations of defendant's mental condition are governed by part IX of this chapter. An indigent offender's right to mental health or mental retardation professional assistance in the sentencing process is provided by standard Evaluations of the current mental condition of offenders prior to or during a sentencing hearing to consider their commitment as mentally ill or mentally retarded offenders are governed by standard Evaluations of the current mental condition of prisoners being considered for voluntary or involuntary transfer to mental health or mental retardation facilities are governed respectively by standards Uses of disclosures or opinions derived from pretrial mental evaluations a Admissibility of disclosure or opinions in criminal proceedings.
No statement made by or information obtained from a person, or evidence derived from such statement or information during the course of any pretrial mental health or mental retardation professional interview or mental evaluation, or during treatment or habilitation, and no opinion of a mental health or mental retardation professional based on such statement, information, or evidence is admissible in any criminal proceeding in which that person is a defendant unless the disclosure or opinion is otherwise admissible under standard If in the course of any evaluation, the mental health or mental retardation professional concludes that defendant may be mentally incompetent to stand trial, presents an imminent risk of serious danger to another person, is imminently suicidal, or otherwise needs emergency intervention, the evaluator should notify defendant's attorney.
If the evaluation was initiated by the court or prosecution, the evaluator should also notify the court. Evaluations initiated by defense a Defense access to mental health or mental retardation professional assistance and evaluation. The right to defend oneself against criminal charges includes an adequate opportunity to explore, through a defense-initiated mental evaluation, the availability of any defense to the existence or grade of criminal liability relating to defendant's mental condition at the time of the alleged crime.
Accordingly, each jurisdiction should make available funds in a reasonable amount to pay for a mental evaluation by a qualified mental health or mental retardation professional selected by defendant in any case involving a defendant financially unable to afford such an evaluation.
In such cases an attorney who believes that an evaluation could support a substantial legal defense should move for the appointment of a professional or professionals in an ex parte hearing. The court should grant the defense motion as a matter of course unless the court determines that the motion has no foundation. The court should promptly provide the prosecution with a copy of the order authorizing the evaluation. Assistance of mental health or mental retardation professionals during the sentencing process is governed by standard Whenever a mental health or mental retardation professional conducts an evaluation of defendant's mental condition upon the request or motion of the defense, all disclosures made by defendant or the attorney during the course of the evaluation are protected by the attorney-client privilege.
As to that evaluation only, the privilege is waived to the extent that discovery is permitted by standard A to raise an issue concerning defendant's mental condition at the time of the alleged crime, and B to introduce the testimony of the mental health or mental retardation professional who conducted the evaluation to support he defense claim on this issue; or, ii defendant calls another mental health or mental retardation professional as an expert witness concerning defendant's mental condition at the time of the alleged crime, and the prosecution establishes, to the court's satisfaction, that in bad faith the defendant secured evaluations by all available qualified mental health or mental retardation professionals in the area thereby depriving the prosecution of the opportunity to obtain an adequate evaluation.
This standard does not preclude a mental health or mental retardation professional from disclosing the fact that the professional evaluated a named person upon defense request. Court-ordered evaluations upon prosecution request a Prosecution access to defendant for evaluation of mental condition at time of alleged crime. The defense attorney should notify the prosecution within [forty-eight] hours after a mental health or mental retardation professional begins a defense-initiated evaluation interview with defendant for the purposes of evaluating defendant's mental condition at the time of the alleged crime.
If a defense attorney has obtained a court-ordered evaluation pursuant to standard Upon motion of the prosecution after it receives notification, the court should order that defendant submit to an evaluation of defendant's mental condition to be performed by a qualified mental health or mental retardation professional acceptable to the prosecution.
If the defense attorney fails to give the required notification, the court may impose sanctions appropriate to the degree of prejudice to the prosecution.
A mental health or mental retardation professional who performs an evaluation initiated by the prosecutor pursuant to paragraph a should notify the prosecution and the defense in writing of the clinical findings and opinions reached in the evaluation. In this notification, the mental health or mental retardation professional should not refer to statements made by defendant or anyone else, identify the sources of information, or present the factual basis for the evaluator's clinical findings and opinions.
The professional should also submit to the court a complete written report whose contents conform to the requirements of standard The court should promptly provide the defendant with a copy of the report but should otherwise order that the report be sealed and that information contained in the report not be divulged.
The court should not read the report prior to ordering it sealed. The report should remain sealed until such time as defendant gives notice, in accordance with standard Upon defendant's giving of the required notice, the court should promptly provide the prosecution with a copy of the mental health or mental retardation professional's report.
If the court determines that an adequate evaluation of defendant's mental condition at the time of the alleged crime has been precluded because defendant has refused to cooperate with the mental health or mental retardation professional, and that the refusal was not a result of defendant's mental illness or mental retardation, the court, in its discretion, may exclude the introduction at trial of testimony by a mental health or mental retardation professional offered by defendant concerning defendant's mental condition at the time of the alleged crime.
Other proof of defendant's mental condition at the time of the alleged crime may be offered by defendant and, if otherwise competent, such evidence should be admissible. Sanctions for a defendant's refusal to cooperate in an evaluation of competency to stand trial are governed by standard Procedures for initiating mental evaluations a Specificity of request.
Whoever initiates an evaluation of defendant's mental condition should inform the mental health or mental retardation professional in writing of each specific matter to be addressed in the evaluation.