Can an Arkansas judge deny a defendant a state-paid mental examination just because the defendant has retained private counsel?

Plain-English summary

Daniel Shue, the prosecuting attorney for Arkansas's 12th Judicial District, brought a question on behalf of Sebastian County Circuit Judge J. Michael Fitzhugh. The judge wanted to know whether he could consider a criminal defendant's indigency status (or lack of it, evidenced by hiring private counsel) when deciding whether to order a mental examination at state expense, either to evaluate fitness to proceed or to support an affirmative defense of lack of criminal responsibility.

AG Leslie Rutledge gave a split answer that turned on whether the requested examination was the first one or a subsequent one.

First examination: indigency cannot be a factor. Ark. Code Ann. § 5-2-327 (fitness to proceed) and § 5-2-328 (lack of criminal responsibility) both lay out when a court must or may order an examination. Section 5-2-327(a)(2) says that if the court finds reasonable suspicion that a defendant is unfit to proceed, the court "shall order" an examination. Section 5-2-328(a)(2) authorizes the court (sua sponte or on motion) to order an examination when the defendant has filed notice of intent to raise the affirmative defense. Neither statute mentions indigency. Under standard rules of statutory construction (the canon that nothing should be taken as intended that is not clearly expressed; State ex rel. Sargent v. Lewis, 335 Ark. 188, 979 S.W.2d 894 (1998)), the Arkansas appellate courts would not read an indigency consideration into the statutes. The constitutional dimension reinforces this: under Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997), and Ake v. Oklahoma, 470 U.S. 68 (1985), when a defendant makes a preliminary showing that sanity is likely to be a significant factor at trial, the State must assure access to a competent psychiatrist regardless of ability to pay.

The AG flagged a separate, related question: who pays. The 2019 statute (Act 567, codified at Ark. Code Ann. § 5-2-331) authorizes treatment and service providers to charge for their services, with rules calibrated in part to the defendant's ability to pay. That suggests a court can order a fitness-to-proceed examination and require the defendant to cover the costs, even when the State requested the examination. The lack-of-criminal-responsibility track in § 5-2-328 is even clearer in this regard, because the defendant must raise the defense, so a non-indigent defendant can be made to pay for his or her § 5-2-331 charges.

Question 2 (whether a hearing on indigency is required before denying a state-paid first examination) is moot. Because indigency cannot be a factor for the first examination at all, no hearing on indigency is required.

Subsequent examinations: indigency may be a factor. As a general rule, once a state-funded evaluation has been performed and a report issued, state law does not require a second opinion. Any further evaluation is discretionary with the trial court (Dirickson, 329 Ark. at 577, 953 S.W.2d at 57; Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001)). A defendant may always procure his or her own examination at his or her own expense (Ark. Code Ann. § 5-2-327(f), § 5-2-328(g)(1)), but the state is not required to fund repeated evaluations. Ark. Code Ann. § 16-86-105 makes this explicit: the "cost of examination other than by examiners retained by the defendant shall be borne by the state." (Emphasis added.) So a court considering whether to order another state-paid evaluation may consider indigency, since the State is not required to "pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial" (Dirickson, 329 Ark. at 577, 953 S.W.2d at 57).

Question 4 (whether a hearing on indigency is required before denying a subsequent state-paid examination) is moot. Because question 3 was answered the way the prosecutor asked, no further response was needed.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

If a defendant hires private counsel, can the trial court still order a state-paid mental exam?
Yes, under the framework set out in this opinion. Ark. Code Ann. §§ 5-2-327 and 5-2-328 do not condition state-paid examinations on indigency, and the AG concluded a court cannot consider lack of indigency when deciding whether to order the examination. Whether the State or the defendant pays for the examination is a separate question that turns on Ark. Code Ann. § 5-2-331 and § 16-86-105.

What's the line between "first" and "subsequent" examinations?
The first examination is the initial state-funded evaluation triggered by either the court's reasonable suspicion (fitness to proceed) or the defendant's notice of an affirmative defense (lack of criminal responsibility). A subsequent examination is anything after that. The state is generally not required to fund repeats; subsequent evaluations are discretionary with the court.

What's Ake v. Oklahoma and why does it matter?
Ake v. Oklahoma, 470 U.S. 68 (1985), is the U.S. Supreme Court's holding that when a defendant makes a preliminary showing that sanity at the time of the offense is likely to be a significant factor at trial, the State must assure access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. The Arkansas Supreme Court applied Ake's logic in Dirickson v. State to hold that the defendant's ability to pay does not relieve the State of this duty.

Can a defendant get an independent expert?
Yes, at the defendant's own expense. Ark. Code Ann. § 5-2-327(f) and § 5-2-328(g)(1) preserve a defendant's right to procure independent examinations. Section 16-86-105 makes clear that the State pays only for the court-ordered examination, not for examiners retained by the defense.

Does Act 567 of 2019 (now Ark. Code Ann. § 5-2-331) change who pays?
Act 567 added a charge-and-cost regime for treatment and service providers. The implementing rules account for the defendant's ability to pay, suggesting that courts can order a fitness-to-proceed examination and require the defendant to cover the cost even when the State requested the exam. The exact contours are statute-and-rule-bound and require checking the current version of § 5-2-331 and any DHS rules.

Background and statutory framework

Ark. Code Ann. §§ 5-2-301 through 5-2-331 govern the criminal-procedure track for mental disease or defect in Arkansas. Section 5-2-327 covers fitness to proceed (the question whether the defendant can understand the proceedings and assist in defense). Section 5-2-328 covers the affirmative defense of lack of criminal responsibility. Both contain mechanisms for court-ordered examinations and protect the defendant's right to procure independent examinations.

Section 5-2-331 (added by Act 567 of 2019) authorizes service providers to charge for their work and directs DHS to set caps and reasonableness rules. Section 16-86-105 establishes that the State pays for examinations not retained by the defendant.

Ake v. Oklahoma, 470 U.S. 68 (1985), and Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997), establish the constitutional floor: when sanity is likely to be a significant factor at trial, the State must assure access to a competent psychiatrist regardless of indigency. Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001), and Dirickson together support the rule that subsequent evaluations are discretionary.

Citations

Statutes:

• Ark. Code Ann. §§ 5-2-301 through 5-2-331 (Repl. 2013 and Supp. 2019) (mental disease or defect)
• Ark. Code Ann. § 5-2-327 (fitness to proceed)
• Ark. Code Ann. § 5-2-328 (lack of criminal responsibility)
• Ark. Code Ann. § 5-2-331 (Supp. 2019) (charges for treatment and services)
• Ark. Code Ann. § 16-86-105 (State pays for examinations not retained by defendant)

Cases:

• Britton v. State, 2014 Ark. 192, 433 S.W.3d 856 (sua sponte order of competency hearing when reasonable doubt exists)
• Ake v. Oklahoma, 470 U.S. 68 (1985) (constitutional floor for state-funded psychiatric examination)
• Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997) (Arkansas application of Ake; subsequent evaluations discretionary)
• Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001) (subsequent evaluations discretionary)
• State ex rel. Sargent v. Lewis, 335 Ark. 188, 979 S.W.2d 894 (1998) (canon: nothing taken as intended that is not clearly expressed)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2019-052
April 6, 2020

The Honorable Daniel Shue
Prosecuting Attorney
Twelfth Judicial District
901 South B Street, Suite 209
Fort Smith, AR 72901

Dear Mr. Shue:

This is in response to your request, on behalf of Sebastian County Circuit Judge J. Michael Fitzhugh, for an opinion on the following questions concerning Ark. Code Ann. §§ 5-2-301 - 331 (Repl. 2013 and Supp. 2019), a portion of the criminal code governing mental disease or defect:

Question 1: Is it permissible under Arkansas law for a circuit judge in a criminal case to grant or deny a criminal defendant a mental examination to be conducted at the state's expense if the defendant has retained counsel and no proof of indigent status has been offered by the defendant?

Question 2: Is it necessary for the circuit court to hold a hearing on the defendant's indigent status prior to denying a mental examination conducted at the state's expense when the defendant has retained counsel?

Question 3: Is it permissible under Arkansas law for a circuit judge in a criminal case to grant or deny a criminal defendant a second mental examination to be conducted at the state's expense if the defendant has retained counsel and no proof of indigent status has been offered by the defendant and the defendant contests the results of the first mental examination?

Question 4: Is it necessary for the circuit court to hold a hearing on the defendant's indigent status prior to denying a second mental examination conducted at the state's expense when the defendant has retained counsel?

RESPONSE

With respect to your first question, it is my opinion that a circuit court may not consider a criminal defendant's retention of private counsel or otherwise not having proved indigency as a factor when deciding whether to order a mental examination as to either the defendant's fitness to proceed or as to the affirmative defense of a lack of criminal responsibility. The question of which party must pay, especially for a fitness-to-proceed examination, is less clear. As to your second question, no response is necessary. As to your third question, I believe a trial court may consider a criminal defendant's indigency status when deciding to order a subsequent evaluation or evaluations paid for by the state. If a criminal defendant wishes to procure his own evaluation, then, and at the court's discretion, the defendant will be responsible for the expense. In light of that response, no response is necessary to your fourth question.

DISCUSSION

Question 1: Is it permissible under Arkansas law for a circuit judge in a criminal case to grant or deny a criminal defendant a mental examination to be conducted at the state's expense if the defendant has retained counsel and no proof of indigent status has been offered by the defendant?

You ask about a court-ordered mental examination under Arkansas law, and I take it you are referring to an examination under either Ark. Code Ann. § 5-2-327 (concerning a criminal defendant's fitness to stand trial) or § 5-2-328 (regarding a defendant's alleged lack of criminal responsibility). I further take it your question is whether it is permissible for a judge to take into account a defendant's lack of indigency status (evidenced perhaps by the fact that the defendant has retained counsel), when deciding whether to order a mental examination under either one of these statutes. In my opinion, the answer to that question is "no." A defendant's indigency status is not a proper consideration under either statute. The question as to whether the state must pay for such examinations in all cases is a different matter.

Under section 5-2-327, "[a]ny party or the court may raise the issue of the defendant's fitness to proceed." If the court finds that there is a "reasonable suspicion that a defendant is not fit to proceed[,]" then the court "shall order" an examination to determine the defendant's fitness. The examination order must either appoint one or more experts who do not practice in the Arkansas State Hospital to examine and report on the defendant's mental condition, or direct the Department of Human Services' Division of Aging, Adult, and Behavioral Health Services (DHS) to provide an expert who will examine and report upon the defendant's mental condition.

Under section 5-2-328, when a criminal defendant files notice of intent to raise lack of criminal responsibility as an affirmative defense, the circuit court may, either on its own motion or on the motion of the prosecutor or the defense attorney, enter an order appointing one or more disinterested experts to examine the defendant. Both types of examinations cannot exceed 60 days unless DHS determines that more time is necessary for the examination.

There is no language in either statute suggesting that a court must or even may consider the criminal defendant's indigency status before granting or denying a fitness-to-proceed or a lack-of-criminal-responsibility mental examination. I do not believe, under the standard rules of statutory construction, that our appellate courts would read such a consideration into them.

Although the court cannot consider a defendant's indigency status when deciding to order mental competency tests, the question of who must pay for such tests, and if and when the state is obliged to pay for initial examinations, when the defendant has not been deemed indigent is less than clear. In 2019, the legislature enacted Act 567, codified at Ark. Code Ann. § 5-2-331, which authorized treatment and service providers to charge for their services under subchapter 3. That statute, however, is focused primarily on what the service providers may charge and not who is paying for the services. Subdivision (c)(2) requires that the rules noted below provide for the waiving or postponing of such charges, in part, in light of the defendant's ability to pay. This would at least suggest that a court can order a fitness-to-proceed test under section 5-2-327 and require the defendant to cover those costs, even when the state requests the examination.

Question 2: Is it necessary for the circuit court to hold a hearing on the defendant's indigent status prior to denying a mental examination conducted at the state's expense when the defendant has retained counsel?

As explained above, a defendant's indigency status is not a proper consideration when a court is deciding whether to order an examination under either sections 5-2-327 or 5-2-328. Accordingly, the answer to this question is "no."

Question 3: Is it permissible under Arkansas law for a circuit judge in a criminal case to grant or deny a criminal defendant a second mental examination to be conducted at the state's expense if the defendant has retained counsel and no proof of indigent status has been offered by the defendant and the defendant contests the results of the first mental examination?

Similar to your first question, I presume the question here is whether a trial court may consider a criminal defendant's lack of indigency status (including the defendant's retention of counsel) when deciding whether to order subsequent mental examinations at the state's expense. In my opinion, the answer to this question is, generally, "yes."

As a general rule, once a state-funded evaluation is performed and a report is issued after an accused has raised the affirmative defense of lack of criminal responsibility or has placed his or her competency to stand trial in issue, state law does not require a second opinion. Any further evaluation is discretionary with the trial court.

A criminal defendant may request and be granted the ability to obtain his or her own independent examination(s) under sections 5-2-327 or 5-2-328. In neither case, however, is it contemplated that these examinations must be a cost to the state. Indeed, as noted above, Ark. Code Ann. § 16-86-105 provides that the "cost of examination other than by examiners retained by the defendant shall be borne by the state." (Emphasis added). Additionally, as the Arkansas Supreme Court has remarked, "the State is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial."

Question 4: Is it necessary for the circuit court to hold a hearing on the defendant's indigent status prior to denying a second mental examination conducted at the state's expense when the defendant has retained counsel?

In light of my answer to the previous question, a response to this question is unnecessary.

Sincerely,

LESLIE RUTLEDGE
Attorney General