Arkansas Code Annotated

Ark. Code Ann. § 5-2-328 (2026)

Examination of defendant — Affirmative defense of lack of criminal responsibility

✓ current as of May 2026

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1. Subject to § 5-2-311, if and only if a defendant charged in circuit court files a notice of intent to raise the affirmative defense of lack of criminal responsibility under § 5-2-304, the circuit court shall immediately suspend any further proceedings.
2. When the defendant files notice under subdivision (a)(1) of this section, then the circuit court may on its own motion or on the motion of the prosecuting attorney or the defense attorney enter an order appointing one (1) or more disinterested experts to examine the defendant with regard to the defense of lack of criminal responsibility.
3. 1. An examination under this section shall be for a period not exceeding sixty (60) days or a longer period as the Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services or his or her designee determines to be necessary for the purpose of the examination.
  2. 1. A person designated by the circuit court to perform an examination under this section shall file the examination report with the clerk of the circuit court ordering the examination.
    2. An examination report filed under this subdivision (a)(3)(B) is a public record.
    3. A copy of the examination report shall be provided by the clerk to the defendant's attorney and the prosecuting attorney.
1. A uniform order to be used by a circuit court ordering an examination of a defendant's lack of criminal responsibility 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, without limitation, 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. 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;
  2. Information about the alleged offense; and
  3. Any information about the defendant's background that is determined to be relevant to the examination, including the criminal history of the defendant.
4. The circuit 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.
5. After it is developed, a copy of the uniform order under this subsection shall be forwarded to the director.
6. An examination under this section shall not be conducted without using the uniform order required under this subsection.
An examination report prepared by an examiner ordered under this section shall contain:
1. A description of the nature of the examination;
2. An opinion as to whether as the result of a mental disease or defect the defendant at the time of the alleged offense lacked the capacity to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of the law, an explanation of the examiner's opinion, and the basis of that opinion;
3. When directed by the circuit court, an opinion as to whether at the time of the alleged offense the defendant lacked the capacity to form a culpable mental state that is required to establish an element of the alleged offense, an explanation of the examiner's opinion, and the basis of that opinion; and
4. If an examination cannot be conducted because of the unwillingness of the defendant to participate in the examination, an opinion as to whether the unwillingness of the defendant is the result of mental disease or defect.
1. An examiner appointed under this section to examine a defendant with regard to a defense of lack of criminal responsibility also may be appointed by the circuit court to examine the defendant with regard to the defendant's fitness to proceed under § 5-2-327.
2. However, the examiner must file with the circuit court separate written reports concerning the defendant's fitness to proceed and lack of criminal responsibility.
Unless otherwise required by this section, an examiner shall not render an opinion or issue a report on the defendant's lack of criminal responsibility if the examiner believes that the defendant is not fit to proceed until the circuit court issuing the order for an examination into the defendant's lack of criminal responsibility makes a determination as to the defendant's fitness to proceed.
A circuit court shall not order the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services to conduct an examination of a defendant's lack of criminal responsibility if a previous examination into the defendant's fitness to proceed has already determined that the defendant does not have a mental disease or defect unless the requesting party can show reasonable cause to believe:
1. There is evidence of a mental disease or defect that was not fully considered in the previous examination into the defendant's fitness to proceed; or
2. That the previous opinion that the defendant does not have a mental disease or defect was based on information or facts later shown to be false or unreliable.
1. This section does not prevent a defendant from having an examination into his or her lack of criminal responsibility conducted by his or her expert or from maintaining a defense of not guilty by reason of a lack of criminal responsibility using testimony from a defense expert or other evidence.
2. If a defendant wishes to be examined by an expert of his or her own choosing, the circuit court shall provide the expert with reasonable opportunity to examine the defendant upon a timely request.

History. Acts 2017, No. 472, § 15.

Case Notes

Access to Records.

Defendant was denied crucial evidence to aid in his defense when he was not furnished the full records of the state hospital relating to two prior commitments to the state hospital. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979) (decision under prior law).

Where a court ordered the mental examination of a defendant, it was prejudicial error to deny him access to the reports and records of the state mental hospital and a regional mental health center regarding such examinations. Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981) (decision under prior law).

Compliance with Former Statute.

Evidence was sufficient to find that there was compliance with the statutory requirement as to a mental examination. Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980) (decision under prior law).

The examination, conducted during defendant's stay at the state hospital, by a doctor, who was admittedly a psychologist rather than a psychiatrist, substantially complied with former statute. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991) (decision under prior law).

Where a defendant is evaluated by the state hospital, such an evaluation complies with the examination requirements of Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991) (decision under prior law).

Where report explicitly referred to the defendant's history of substance abuse, incarceration for delinquency, and psychiatric problems, even though examiner may not have had before him the full medical, psychiatric, and delinquency records of the defendant, report substantially complied with the requirements of state law. Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992) (decision under prior law).

The trial court did not err in failing to order a psychiatric evaluation by the state hospital where the trial court correctly determined that the evaluation by a local, approved psychologist was a proper alternative and was in compliance with former statute. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995) (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).

Continuance.

Defendant's motion for continuance filed the day before trial to obtain an independent examination to support an affirmative defense of lack of criminal responsibility was properly denied as he had ample time to pursue an independent evaluation before trial, but instead planned to wait and see what the state hospital's report would conclude before seeking to obtain his own experts for an evaluation; although the state hospital's report was not provided until shortly before trial, a defendant who employs such a “wait and see” strategy is not acting diligently in attempting to secure the necessary information on which to build a defense of mental disease or defect. In addition, defendant failed to show any prejudice from the denial of the continuance. Hendrix v. State, 2019 Ark. 351, 588 S.W.3d 17 (2019).

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).

Expert Opinion.

Where defendant was found guilty of first-degree murder and attempted first-degree murder, the trial court did not abuse its discretion in excluding certain expert testimony regarding defendant's capacity to form intent. The expert's report did not state that defendant lacked the capacity to form intent, only that it was impacted or impaired, and the expert also opined that defendant's psychotic disorder did not render him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Furthermore, there was ample evidence of purposeful conduct where defendant left a bar and returned with a shotgun that he used against the victims. Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015) (decision under prior law).

Hearing.

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).

Notice of Intent.

Circuit court acted without jurisdiction in ordering defendant to submit to a criminal responsibility examination because defendant had not filed a notice of intent to raise the defense of not guilty for reason of mental disease or defect. Friar v. Erwin, 2014 Ark. 487, 450 S.W.3d 666 (2014) (decision under prior law).

Psychiatrist's Opinion.

While psychiatrist's opinion was a conditional one, it was nonetheless an opinion as to defendant's “ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” at the time the offense was committed. Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990) (decision under prior law).

Former statute required no unequivocal or conclusive opinion, but provided only that such reports contain some opinion as to the extent to which the defendant's mental capacity was impaired. Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995) (decision under prior law).

Request or Motion for Examination.

The time necessary to complete a mental examination requested by a defendant is excluded from the one-year period for speedy trial. Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004) (decision under prior law).

Notes of Decisions

Cited in 1 case, 2019–2019 · leading case: Roy A. Hendrix v. State of Arkansas, 2019 Ark. 351 (Ark. 2019).

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Roy A. Hendrix v. State of Arkansas, 2019 Ark. 351 (Ark. 2019). · cites it 4× “A defendant lacks criminal responsibility for his actions if, due to a mental disease or defect, he lacked capacity at the time of the alleged offense to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law.”

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