Filing notice of intent to plead the insanity defense: In general
Filing notice of intent to plead the insanity defense: Permitting late filings
Procedure after filing notice of intent to plead the insanity defense: Appointment of examiners
Defendant’s right to counsel during pre-trial psychiatric examinations
Defendant’s rights to appointed examiners and examiners of his or her own choosing
Defendant’s privilege against self-incrimination in psychiatric examinations
Filing notice of intent to plead the insanity defense: In general
• When the defendant in a criminal case intends to interpose the defense of insanity, he must file a notice of that intent with the trial court no later than:
(1) twenty (20) days if the defendant is charged with a felony; or
(2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;
before the omnibus date.
• However, in the interest of justice and upon a showing of good cause, the court may permit the filing to be made at any time before commencement of the trial.
Filing notice of intent to plead the insanity defense: Permitting late filings
• [T]he mandatory language of the statute required defendant to file his notice of intent to plead insanity as a defense twenty days before the omnibus date. After that date, the trial court's discretion controlled.
Eveler v. State, 524 N.E.2d 9, 11 (Ind. 1988)(emphasis added)
See Zamani v.State, 33 N.E.3d 1130, 1135-36 (Ind. Ct. App. 2015)(“As [the defendant] attempted a late filing of the required notice, the trial court had discretion whether to accept it.”)
See also Ankney v. State, 825 N.E.2d 965, 970 (Ind. Ct. App. 2005), trans. denied(“[The defendant] attempted a late filing of the required notice, and, thus, the trial court had discretion whether to accept it.”)
• Such discretion is exercisable upon a showing of good cause by a defendant who has missed the deadline. The interest of justice must be served by allowing the late filing.
Eveler v. State, 524 N.E.2d 9, 11 (Ind. 1988)
See Dudley v. State, 480 N.E.2d 881, 895 (Ind. 1985)(“IC 35-5-2-1 makes clear that a defendant's right to plead the insanity defense is conditioned upon a showing of good cause once the statutory period has expired and before trial has commenced.”)
Filing notice of intent to plead the insanity defense: Withdrawing an initial plea of insanity, and then filing a subsequent plea of insanity
• We hold that a defendant is not entitled to file a subsequent plea of insanity, after an initial such plea and the withdrawal thereof, without a showing of cause for such apparently incongruous action.
Llewellyn v. State, 386 N.E.2d 674, 675 (Ind. 1979)
Procedure after filing notice of intent to plead the insanity defense: Appointment of examiners
• When notice of an insanity defense is filed in a case in which the defendant is not charged with a homicide offense under IC 35-42-1, the court shall appoint two (2) or three (3) competent disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the state psychology board as health service providers in psychology; or
(3) physicians;
who have expertise in determining insanity. At least one (1) of the individuals appointed under this subsection must be a psychiatrist or psychologist.
• When notice of an insanity defense is filed in a case in which the defendant is charged with a homicide offense under IC 35-42-1, the court shall appoint two (2) or three (3) competent disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the state psychology board as health service providers in psychology; or
(3) physicians;
who have expertise in determining insanity. At least one (1) individual appointed under this subsection must be a psychiatrist and at least one (1) individual appointed under this subsection must be a psychologist.
• When a defendant files a notice of insanity defense, the trial court must appoint two or three competent disinterested medical witnesses to examine the defendant and testify at trial.
Mendenhall v. State, 963 N.E.2d 553, 566 (Ind. Ct. App. 2012), trans. denied(citing IC 35-36-2-2(b))
Cf. Graham v. State, 464 N.E.2d 1, 9 (Ind. 1984), reh’g denied(“When a defendant in a criminal case claims an insanity defense, it is imperative that psychiatrists be appointed to examine him.”)
Procedure after filing notice of intent to plead the insanity defense: Definitions and interpretations of “disinterested”
• The term “disinterested” is not defined in IC 35-36-2-2 or related statutes. According to Black's Law Dictionary, the term means “(n)ot concerned, in respect to possible gain or loss, in the result of the pending proceedings or transactions; impartial, not biased or prejudiced.” The dictionary also describes a “disinterested witness” as “(o)ne who has no interest in the cause or matter in issue, and who is lawfully competent to testify.”
Stratton v. State, 499 N.E.2d 1123, 1124 n. 1 (Ind. 1986)(quoting Black's Law Dictionary 421 (5th ed. 1979))
• [The defendant] also claims that [the doctor] should not have been allowed to testify because his part-time work with the prison, allegedly rendered him an “interested” witness . . . . [The defendant] does not explain, nor are we able to discern, how [the doctor’s] work with the prison would give him an interest in the outcome of [the defendant’s] trial. The mere fact that the doctor received money from the State for his consultations would not, standing alone, render him an interested witness.
Nagy v. State, 386 N.E.2d 654, 656 (Ind. 1979)
See Stratton v. State, 499 N.E.2d 1123, 1124 n. 1 (Ind. 1986)(citing Nagy v. State, 386 N.E.2d 654, 656 (Ind. 1979))(“This Court has held that a doctor was disinterested within the meaning of IC 35-36-2-2, although he was paid by the state for acting as a psychiatric consultant at the Indiana State Prison.”)
• [The defendant’s] claim rests on the bald assertion that psychiatrists who share office space and family relationship cannot be “disinterested.” . . . We conclude that the psychiatrists in this case were not inherently biased simply because they shared professional and familial relationships. They conducted separate examinations and reached independent conclusions, just as unrelated psychiatrists would have done under the same circumstances.
Stratton v. State, 499 N.E.2d 1123, 1124 (Ind. 1986)
• The [defendant] points out that [the examiner] reviewed the prosecutor's file and the police report in coming to his conclusions. We fail to see any impropriety in his review of all the facts at his disposal. The [defendant] also points out that this doctor has examined “over 500 persons ‘for this Court’” and has earned substantial sums of money each year from Lake County for providing medical services. The frequency of the doctor's examinations would seem to be evidence of his expertise as much as anything else. . . . There is no evidence to suggest that he was not disinterested.
Bailey v. State, 346 N.E.2d 741, 745 (Ind. 1976)
Defendant’s right to counsel during pre-trial psychiatric examinations
• [T]he proper test for determining whether a particular proceeding is a “critical stage,” to which the assistance of counsel guarantee applies, is whether the defendant is confronted with the intricacies of the law or the advocacy of the public prosecutor or prosecuting authorities.
Williams v. State, 555 N.E.2d 133, 136 (Ind. 1990)
• “A psychiatric examination involves no ‘intricacies of the law.’ Because the examiner, appointed by the trial court, under IC 35-36-2-2, is disinterested, the defendant is thus not facing his adversary in such an examination. The defendant was not entitled to the presence of his counsel during the psychiatric examinations.”
Esmond v. State, 20 N.E.3d 213, 215 (Ind. Ct. App. 2014)(quoting Williams v. State, 555 N.E.2d 133, 136 (Ind. 1990))
See Milian v. State, 994 N.E.2d 342, 349 (Ind. Ct. App. 2013)(“[A] court-ordered mental evaluation following an insanity plea is not a critical stage giving rise to the right to counsel . . . .”)
• For more information about the defendant’s right to counsel, please review Right to Counsel.
Defendant’s rights to appointed examiners and examiners of his or her own choosing
• We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed . . . .
Ake v. Oklahoma, 470 U.S. 68, 83 (1985)
• Our law provides that in any case in which the defendant intends to interpose the defense of insanity the trial court shall appoint two or three medical experts, at least one of whom shall be a psychiatrist, to examine the defendant and to testify at trial. . . . We regard the examination and testimony provided under our law as satisfying a part of the requirement of Ake.
Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985)(internal quotation marks omitted)
• It may well be that the psychiatrists appointed by the trial court will not have reached conclusions satisfying to the defendant (or to the prosecutor, for that matter), but the defendant clearly does not have the right to receive funds to hire a psychiatrist of his own choosing.
Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985)(citing Ake v. Oklahoma, 470 U.S. 68, 83 (1985))
See Myers v. State, 510 N.E.2d 1360, 1362 (Ind. 1987)(citing Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985))(“A defendant clearly does not have the right to receive funds to hire a psychiatrist of his own choosing.”)
See also Norris v. State, 394 N.E.2d 144, 147 (Ind. 1979), reh’g denied(citing Murphy v. State, 352 N.E.2d 479, 484 (Ind. 1979), reh’g denied)(“[O]ur courts have previously held that this statute does not require the court to appoint psychiatrists of a defendant's choosing.”)
• In this respect, we believe Indiana's system of appointing at least two disinterested experts for trial provides a more reliable fact-finding basis than would a system in which both sides show up for trial with their own “hired guns.”
Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985)
• Our statutory scheme should be read in a way that complies with Ake in another respect—by making the court appointed experts available for consultation with counsel. In order to be effective at trial, counsel must have access to a psychiatrist with whom to explore the details of the defendant's mental condition, formulate an understanding of the questions which will be at issue, and inquire about the validity of observations being made by other witnesses.
Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985)
See Thomas v. State, 486 N.E.2d 531, 534 (Ind. 1985)(citing Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985))(“This Court has found the Ake requirements are satisfied when the court complies with the provision of IC 35-36-2-2 and the psychiatrists are available for consultations with counsel prior to trial.”)
• [Thus], when appointing medical experts under IC 35-36-2-2, the trial court should include in its order that the psychiatrist be available for consultation with counsel during preparation for trial.
Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985)
Defendant’s privilege against self-incrimination in psychiatric examinations
• [The defendant] contends that the privilege against self-incrimination extends to psychiatric examinations. This Court so held long ago.
Taylor v. State, 659 N.E.2d 535, 540 (Ind. 1995)(citing Haskett v. State, 263 N.E.2d 529, 531 (Ind. 1970))
• The defendant cannot be compelled to respond at a psychiatric examination initiated by the prosecution for the purpose of determining whether he is a criminal sexual psychopathic person and subject upon such pre-trial determination to be confined in a state psychiatric institution for an indefinite period, possibly life.
See Haskett v. State, 263 N.E.2d 259, 531 (Ind. 1970)
• A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.
Estelle v. Smith, 451 U.S. 454, 468 (1981)
• This statement logically leads to another proposition: if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution.
Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987)
See Mahaffey v. State, 459 N.E.2d 380, 382 (Ind. 1984)(“[The defendant] initiated the psychiatric examination when he filed his special plea of insanity, and accepted the fact that he would be then subject to psychiatric examination and evaluation for the purpose of generating evidence admissible in the oncoming trial and useful to the prosecution in defeating his position.”)
• [The defendant] voluntarily filed his insanity defense. Even though he may have made incriminating statements during his examinations by the State's medical experts, his right against self-incrimination was not violated. He was not compelled to file his insanity plea. The Fifth Amendment prohibits only compelled self-incrimination.
Stolarz v. State, 445 N.E.2d 114, 118 (Ind. Ct. App. 1983)(citations omitted)
• [The defendant’s] examinations were merely part of an established medical procedure for determining his comprehension and sanity at time of commission. They were not designed to extract incriminating statements from him for use as evidence in the State's case in chief. Examinations for such purpose are similar to a defendant's compelled speaking or physical display at trial, long recognized as constitutionally permissable, [sic] the only difference being his psychological makeup, rather than a tattooed arm or a hand with missing fingers is on display.
Stolarz v. State, 445 N.E.2d 114, 117 (Ind. Ct. App. 1983)(internal citations omitted)
• For more information about the defendant’s privilege against self-incrimination, please review Privilege Against Self-Incrimination.