Order For Criminal Responsibility And Capacity To Conform Evaluation Form (Page 5 of 9) in pdf

strike a balance between defendant’s right to explore the possibility of an insanity defense and

prosecution’s right to respond if such defense is raised. If defendant is requesting evaluation prior to

asserting the defense of insanity, the evaluation shall be confidential until such time as defendant

elects to assert the insanity defense. If defendant or prosecution is requesting evaluation after

defendant’s formal assertion of the insanity defense pursuant to Rule 5(f) of the South Carolina

Rules of Criminal Procedure, or both parties are requesting the evaluation by consent, the evaluation

shall not be confidential and both defense counsel and the prosecutor shall be provided a copy of the

examiner’s report. In either case, ownership of the examining agency’s files shall be vested with the

examining agency.

(A)

Ex parte evaluation requested by defendant prior to assertion of insanity defense.

If defendant has requested an evaluation to determine whether the insanity defense may be

viable, the examiner’s report shall not be provided to the prosecution and shall not be admissible as

evidence in any Court proceedings. The prosecution may not discover any portion of the evaluation

files. Any written report resulting from the evaluation shall be considered confidential and provided

only to defense counsel, and shall be provided within ten (10) days of all examinations or the

conclusion of the inpatient examination period. Examiners and agency staff may not be compelled to

testify regarding statements made during the criminal responsibility and capacity to conform

examination for any purpose unless and until defendant asserts the defense of insanity. However, as

a condition of accepting the evaluation provided by the State of South Carolina, defendant expressly

waives any and all confidentiality privileges associated therewith if defendant subsequently asserts

the insanity defense. In such case, the evaluation shall no longer be confidential, and all parties’

access to the evaluation report shall be controlled by paragraph (B) below.

(B)

Evaluation requested by either party after assertion of insanity defense.

Because the assertion of the insanity defense places defendant’s mental status at issue, either

party may discover any portion of the evaluation files upon presentation of a Court order authorizing

such or a release authorization signed by defendant. Both the prosecutor and defense counsel shall

be provided a copy of the examiner’s report within ten (10) days of the conclusion of all

examinations or the inpatient examination period. The evaluation report may be admissible as

evidence in subsequent hearings concerning defendant’s criminal responsibility and capacity to

SCCA 222 (02/2012)

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Order For Criminal Responsibility And Capacity To Conform Evaluation Form Page 5