Statutes

Question 1

What 7 factors should be considered as part of a 327 evaluation?

Answer 1

AR Code §5-2-327 Examination of defendant - Fitness to proceed

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
6. ) Testify
7. ) Engage with the defendant’s attorney in an effective manner

Question 2

Lack of Criminal Responsibility

Answer 2

Due to a mental disease or defect a defendant lacked the capacity at the time of the alleged offense to either:

(A) Appreciate the criminality of his or her conduct; or

(B) Conform his or her conduct to the requirements of the law

Question 3

Mental Disease or Defect

Answer 3

(i) Substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgement, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life;
(ii) State of significantly subaverage general intellectual functioning existing concurrently with a defect of adaptive behavior that developed during the developmental period; or
(iii) Significant impairment in cognitive functioning acquired as a direct consequence of a brain injury or resulting from a progressively deteriorating neurological condition

DOES NOT INCLUDE

(i) Repeated criminal or otherwise antisocial conduct;
(ii) Continuous or noncontinuous periods of intoxication caused by a substance such as alcohol or a drug; or
(iii) Dependence upon or addiction to any substance such as alcohol or a drug

Question 4

AR Code §5-2-312

Answer 4

Lack of capacity - Affirmative defense

It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged he or she lacked capacity as a result of mental disease or defect to:

(A) Conform his or her conduct to the requirements of law; or

(B) Appreciate the criminality of his or her conduct

Question 5

What 4 things should a 328 evaluation include?

Answer 5

AR Code §5-2-328 Examination of defendant - Affirmative defense of lack of criminal responsibility

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.

Question 6

What must be considered prior to rendering a 328 opinion?

Answer 6

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 (327 opinion).