Arkansas Code Annotated

Ark. Code Ann. § 5-2-327 (2026)

Examination of defendant — Fitness to proceed

✓ current as of May 2026

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1. Any party or the court may raise the issue of the defendant's fitness to proceed.
2. The court shall order an examination under this section if it finds there is a reasonable suspicion that a defendant is not fit to proceed.
3. 1. Subject to §§ 5-2-304 and 5-2-311, the court shall immediately suspend further proceedings in a prosecution if it has ordered an examination under this section.
  2. 1. If a jury has been impaneled and the court suspends proceedings under subdivision (a)(3)(A) of this section, the court may retain the jury or declare a mistrial and discharge the jury.
    2. A discharge of the jury is not a bar to further prosecution.
4. If a court suspends further proceedings in the prosecution under subdivision (a)(3)(A) of this section, the court shall enter an order:
  1. Appointing one (1) or more experts who do not practice in the Arkansas State Hospital to examine the defendant and report on the defendant's mental condition; or
  2. 1. Directing the Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services to provide an expert who will examine and report upon the defendant's mental condition.
    2. The director or his or her designee shall determine the location of the examination required under subdivision (a)(4)(B)(i) of this section.
An examination ordered under this section shall be for a period not exceeding sixty (60) days unless the director or his or her designee determines a longer period of examination is necessary for the purpose of the examination.
1. A uniform order to be used by a court ordering an examination of a defendant's fitness to proceed under this section shall be developed by the Administrative Office of the Courts in conjunction with the following organizations:
  1. The Arkansas Prosecuting Attorneys Association;
  2. The Department of Human Services; and
  3. The Arkansas Public Defender Commission.
2. The uniform order developed under this subsection shall contain the following information:
  1. The defendant's name, age, gender, and race;
  2. The criminal charges pending against the defendant;
  3. The defendant's attorney's name and address;
  4. The defendant's custody status;
  5. The case number for which the examination was ordered;
  6. A unique identifying number on the incident reporting form as required by the Arkansas Crime Information Center; and
  7. The name of the requesting attorney, if applicable.
3. An examination under this section shall not be conducted without using the uniform order required under this subsection.
4. The uniform order shall require the prosecuting attorney to provide to the examiner any information relevant to the examination, including without limitation:
  1. The name and address of any attorney involved in the matter; and
  2. Information about the alleged offense.
5. The court may require the attorney for the defendant to provide any available information relevant to the examination, including without limitation:
  1. Psychiatric records;
  2. Medical records; or
  3. Records pertaining to treatment of the defendant for substance or alcohol abuse.
1. An examination report ordered under this section shall be filed with the clerk of the court ordering the examination and is a public record.
2. The court clerk shall provide copies of the examination report to the defendant's attorney and the prosecuting attorney.
1. An examination report prepared by an examiner ordered under this section shall:
  1. Contain an opinion as to whether or not the defendant is fit to proceed and the basis for the opinion;
  2. Contain an opinion as to whether the defendant has a mental disease or defect;
  3. Contain a substantiated diagnosis in the terminology of the American Psychiatric Association's most current edition of the Diagnostic and Statistical Manual of Mental Disorders;
  4. Document that the examiner explained to the defendant:
    1. The purpose of the examination;
    2. The persons to whom the examination report is provided; and
    3. The limits on rules of confidentiality applying to the relationship between the examiner and the defendant; and
  5. Describe, in specific terms:
    1. The procedures, techniques, and tests used in the examination;
    2. The purpose of each procedure, technique, or test; and
    3. The conclusions reached.
2. An examiner's opinion on the defendant's fitness to proceed or lack of fitness to proceed may not be based solely on the defendant's refusal to communicate during the examination.
3. 1. During an examination to determine a defendant's fitness to proceed and in any examination report based on that examination, an examiner shall consider:
    1. The capacity of the defendant during criminal proceedings to:
      1. Rationally understand the charges against him or her and the potential consequences of the pending criminal proceedings;
      2. Disclose to the defendant's attorney pertinent facts, events, and states of mind;
      3. Engage in a reasoned choice of legal strategies and options;
      4. Understand the adversarial nature of criminal proceedings;
      5. Exhibit appropriate courtroom behavior; and
      6. Testify;
    2. As supported by current indications and the defendant's personal history, whether the defendant is a person with:
      1. A mental disease or defect; or
      2. An intellectual disability; and
    3. The degree of impairment resulting from the mental disease or defect or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with the defendant's attorney in an effective manner.
  2. The information or lack of information contained in the examiner's report is not intended to limit the introduction of evidence regarding the defendant's fitness to proceed.
This subchapter does not preclude the defendant from having an examination conducted by an expert of the defendant's own choosing to determine the defendant's fitness to proceed, and the court shall provide the defendant's expert with a reasonable opportunity to examine the defendant upon a timely request.
When the defendant has previously been found fit to proceed, the court may order a second or subsequent examination to determine a defendant's fitness to proceed only if the court:
1. Finds reasonable cause to believe that new or previously undiscovered evidence calls into question the factual, legal, or scientific basis of the opinion upon which the previous finding of fitness relied;
2. Finds reasonable cause to believe that the defendant's mental condition has changed; or
3. Sets forth in the order a factual or legal basis upon which to order another examination.
Upon completion of examination under this section, the court may enter an order providing for further examination of the defendant and may order the defendant into the custody of the director for further examination and observation if the court determines that commitment and further examination are warranted.

History. Acts 2017, No. 472, § 14.

Case Notes

Applicability.

Former section was inapplicable to a sentence revocation hearing; thus, the decision whether to provide psychiatric assistance to one facing a revocation hearing, like the decision concerning entitlement to counsel, must be on a case by case basis, and while due process must be accorded the defendant, there is no entitlement to the full range of criminal trial safeguards because the court is not dealing with a person who had yet to be convicted of anything. Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990) (decision under prior law).

Compliance with Former Statute.

Where psychiatrist's report raises a reasonable doubt about defendant's competency to stand trial, the trial court should order a full examination and report and, if warranted by the report, should conduct a determination of fitness to proceed pursuant to § 5-2-309. Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988) (decision under prior law).

The appointment of a psychiatrist was not required under former statute; substantial compliance with former statute through an evaluation by a psychologist was enough. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994) (decision under prior law).

Continuance denied even though psychiatric report had not been filed in strict compliance with former statute where defendant failed to show any prejudice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996) (decision under prior law).

Trial court committed reversible error by failing to immediately suspend the proceedings in defendant's trial for first-degree murder and order a psychiatric evaluation upon defendant's motion requesting that an evaluation be done. Kelly v. State, 80 Ark. App. 126, 91 S.W.3d 526 (2002) (decision under prior law).

Trial court erred in deeming defendant's federal mental evaluation sufficient to satisfy Arkansas' mandatory statutory scheme governing state mental evaluations; the trial judge's decision was a gross abuse of his discretion that warranted the granting of a writ of certiorari. Smith v. Fox, 358 Ark. 388, 193 S.W.3d 238 (2004) (decision under prior law).

Defendant's conviction for breaking or entering was proper because the trial court did not err in failing to suspend the proceedings sua sponte and order a second competency hearing based on his actions shortly before and during trial. In part, although defendant appeared to have required restraint at trial because he would stand at inappropriate times, and he asserted that he did not understand the proceedings, those behaviors were entirely consistent with those observed during the videotaped interview following his arrest, after which defendant underwent a psychological examination. Vilayvanh v. State, 2012 Ark. App. 561 (2012) (decision under prior law).

Circuit court did not err in ordering a fitness to proceed examination because the State and the circuit court both raised the issue of fitness to proceed, and the circuit court's order clearly stated that it found reasonable suspicion to believe that defendant was not fit to proceed; the statute authorizes the circuit court to raise the issue of a defendant's fitness to proceed and requires it to order the examination once a finding of reasonable suspicion has been made. Friar v. Erwin, 2014 Ark. 487, 450 S.W.3d 666 (2014) (decision under prior law).

Costs.

Due process of law does not require the state to furnish expenses for a defendant to shop from doctor to doctor until he finds one who considers him mentally incompetent. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1847, 85 L. Ed. 2d 145 (1985) (decision under prior law).

Examination Report.

Where the psychiatrist's report regarding the defendant's fitness to stand trial substantially complied with the requirements of former statute, the trial court did not err in requiring the defendant to proceed to trial, even though the report was not in the exact terms of former statute. Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983) (decision under prior law).

Denial of the inmate's petition for postconviction relief under Ark. R. Crim. P. 37.1 was improper as to the competency issue because the supreme court was unable to determine whether there were any results of the mental evaluation of which the parties or the court might have been made aware, whether those results were contested, or whether there was any other resolution settling the issue of the inmate's competency to proceed and enter his plea. Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508 (2011) (decision under prior law).

Hearing.

Evidence sufficient to find that there was no prejudicial error in the conduct of the competency hearing. Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980) (decision under prior law).

A pre-trial hearing on the morning of trial, where the court considered the propriety of defendant's withdrawal of his incompetency defense before allowing the case to proceed, complied with procedural due process requirements. Griffin v. State, 25 Ark. App. 186, 755 S.W.2d 574 (1988) (decision under prior law).

Trial court erred in denying defendant's request for a competency hearing because a hearing was mandatory where defendant plainly took issue with a psychologist's finding that he was competent and requested a hearing. Simpson v. State, 2015 Ark. App. 103, 455 S.W.3d 856 (2015) (decision under prior law).

Fitness to Proceed.

Under the statute, the court may raise the incompetency defense on its own at any time it has “reason to doubt” a defendant's fitness to proceed. Griffin v. State, 25 Ark. App. 186, 755 S.W.2d 574 (1988) (decision under prior law).

Trial court's refusal to halt the proceedings and order a mental evaluation based on defendant's notice was proper where there was no specific assertion that appellant was suffering from a mental disease or defect which affected his competency to proceed, but rather that it was his lack of recollection of the incident that was affecting his capacity to proceed. Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992) (decision under prior law).

Trial court did not err in denying defendant's request for a mental evaluation where there was no evidence to suggest that he lacked an appreciation for the seriousness of the charges against him or an ability to assist his attorney in his defense, and the trial court found him fit to proceed. Bryant v. State, 94 Ark. App. 387, 231 S.W.3d 91 (2006) (decision under prior law).

Pursuant to defense counsel's motion, the court suspended defendant's trial for a mental-health evaluation and a doctor determined that defendant demonstrated a fully-developed, persecutory-type delusion; however, once defendant's fitness was restored, his prosecution for attempting to commit capital murder could proceed and the court was not required to order a second evaluation when defendant later claimed he was hearing voices. Steward v. State, 95 Ark. App. 6, 233 S.W.3d 180 (2006) (decision under prior law).

Where defendant appealed his convictions for violating §§ 5-64-443(c) and 5-64-420(a)(2), the circuit court did not err by denying his motion for a psychological evaluation. Defendant's mere statement that he was depressed was not enough to give the circuit court reason to believe that mental disease or defect would be an issue or to give the circuit court reason to doubt his fitness to proceed. King v. State, 2014 Ark. App. 81, 432 S.W.3d 127 (2014) (decision under prior law).

In a probation revocation case, defendant waived an argument relating to whether the trial court should have halted proceedings and ordered an assessment because he never filed notice that he intended to rely on a defense of mental disease or defect or that he was putting into issue his fitness to proceed; moreover, defense counsel indicated that no issue existed. Even if the trial court had denied a mental evaluation, there was no reversible error in proceeding with the revocation hearing since this was not a criminal trial, and defendant had undergone two evaluations previously. Ring v. State, 2014 Ark. App. 169 (2014) (decision under prior law).

Request or Motion for Examination.

A pretrial motion for a psychiatric examination was not sufficient to raise the requisite reasonable or bona fide doubt necessary for the trial judge to make a finding of the defendant's incompetency to stand trial. Collins v. Housewright, 664 F.2d 181 (8th Cir. 1981), cert. denied, 455 U.S. 1004, 102 S. Ct. 1639, 71 L. Ed. 2d 872 (1982) (decision under prior law).

Supplementary Examination.

Where the psychiatrist's report told the court virtually nothing and was palpably in noncompliance with former statute and the defendant had a history of mental illness, further observation and examination should have been ordered and his conviction was reversed. Vance v. State, 288 Ark. 274, 704 S.W.2d 170 (1986) (decision under prior law).

Notes of Decisions

Cited in 3 cases (2 in the last 5 years), 2018–2025 · leading case: Lovell Govan v. State of Arkansas, 2025 Ark. App. 143 (Ark. Ct. App. 2025).

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Lovell Govan v. State of Arkansas, 2025 Ark. App. 143 (Ark. Ct. App. 2025). · cites it 6× “The circuit court found that the April 27 letter was not a full “report” as contemplated by Ark. Code Ann. § 5-2-327 (e)(1) (Repl. 2024) because it did not contain certain findings and opinions required by the statute, such as a “substantiated diagnosis in 5 the terminology of…”

William Seward v. State of Arkansas, 2022 Ark. App. 183 (Ark. Ct. App. 2022). · cites it 2× “” Arkansas Code Annotated section 5-2-327(1) (Supp. 2021) provides that “[a]ny party or the court may raise the issue of the defendant’s fitness to proceed.”

Watson v. State, 547 S.W.3d 89 (2018). “Arkansas Code Annotated section 5-2-305 was repealed during the 2017 legislative session, and is now codified at Ark. Code Ann. §§ 5-2-327 to -328 (Supp. 2017).”

— Ark. Code Ann. § 5-2-327(1) — 1 case

William Seward v. State of Arkansas, 2022 Ark. App. 183 (Ark. Ct. App. 2022). “” Arkansas Code Annotated section 5-2-327(1) (Supp. 2021) provides that “[a]ny party or the court may raise the issue of the defendant’s fitness to proceed.”

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