Court-Ordered Mental Examinations

Court-Ordered Mental Examinations

Once a defendant's mental condition becomes an issue in a criminal case, the court needs a dependable way to look at it. A person's mental state at the time of an offense is something the defendant knows better than anyone, yet it can be tested only by a clinician who interviews and evaluates the person. If the government had no means of examination, an insanity defense would rest on whatever the defense chose to reveal through its own retained expert, and the outcome would depend on how persuasive one side's witness happened to be. Court-ordered examination answers that problem by putting a qualified examiner in front of the defendant, typically a psychiatrist designated by the court or employed by the government, who prepares a report for the court, the prosecutor, and defense counsel.¹ The practice responds to the so-called battle of the experts, the complaint that the insanity issue is tried without the impartiality that scientific inquiry demands.²

An examination can answer either of two separate questions, and the first task in this section is to keep them apart. Competency to stand trial asks about the defendant's present condition, namely whether the defendant understands the charges and can assist in the defense, so that the trial can go forward at all.³ Sanity looks backward and asks whether the defendant was responsible when the offense occurred. Each question has its own trigger. Doubt about competency, asserted by the defense, the prosecutor, or the court, can lead to a competency examination, while the defendant's own plea or notice of an insanity defense leads to an examination into mental state at the time of the offense.⁴ The difference in triggers carries over into the law on how the results may be used, which is why the subsections below treat the two examinations separately.

The contrast between the two is sharpest in Estelle v. Smith. A trial judge there ordered a psychiatric evaluation for the limited purpose of determining whether the defendant was competent to stand trial, and the State later called the examining psychiatrist at the capital sentencing hearing to testify that the defendant would remain dangerous, a conclusion drawn largely from the defendant's own account of the crime during the interview.⁵ The Court concluded that the privilege against self-incrimination was directly involved, because the State had used the substance of the defendant's disclosures against him for a purpose far broader than the one for which the examination was ordered.⁶ The Court then distinguished the sanity examination. When a defendant asserts an insanity defense and introduces supporting psychiatric testimony, silence may deprive the State of the only effective means it has of answering proof on an issue the defendant injected into the case, and several courts of appeals have therefore held that such a defendant can be required to submit to a sanity examination by the prosecution's psychiatrist.⁷ The defendant in Estelle had introduced no psychiatric evidence and had given no sign that he would, which is the fact that separated his situation from the sanity-examination cases.

The lines between the two examinations can blur in practice. A competency examination, although ordered for a narrow purpose, will probably leave the examiner with information about the defendant's condition at the time of the alleged crime, so the protections against using examination statements for other purposes matter from the start.⁸ Students go wrong when they treat a competency examination as an inquiry into sanity, because the two questions, the two triggers, and the permitted uses of the results all differ. The subsections below follow the order in which these issues usually arise: the competency examination comes first, then the examination that follows an insanity notice, then the Model Penal Code's appointment of a psychiatrist and the contents of the examiner's report, then the limits on using what the defendant says, and finally the defendant's own constitutional claim to a psychiatrist's help.

Competency Examinations

Rule 12.2(c)(1)(A) supplies the first examination power in the rule: the court may order the defendant to submit to a competency examination under 18 U.S.C. § 4241.¹⁰ The power makes sense only once the question behind it is clear. Competency to stand trial asks whether the defendant, at the time of the proceedings, can understand them and take part in the defense, and due process forbids trying a person who cannot.¹¹ The reason is practical. The rights to be present at trial and to confront accusers mean little to a defendant who cannot grasp what is happening, and such a defendant cannot weigh a plea, help counsel test a witness, or decide whether to testify. The constitutional test is therefore modest: the defendant needs sufficient present ability to consult with counsel with a reasonable degree of rational understanding, and a rational as well as factual understanding of the proceedings.¹² The examination gives the judge reliable information on that point, since a judge watching a hearing cannot diagnose a mental condition unaided.

The verb in the federal rule is permissive, so the sentence confers a power and does not impose a duty. It also attaches no precondition such as an insanity notice, which means the power reaches any case in which the court needs information about the defendant's present condition.¹³ The discretion has a reason. An examination pauses the case while the examiner works, and a request for one can be used by a defendant who simply wants delay, so the judge needs room to decline when nothing in the case raises a real doubt. The Constitution sets a floor under that discretion, though. In Pate v. Robinson the Court held that a trial judge must inquire into competency, without any request, whenever sufficient doubt exists about the defendant's present competence, and it found that duty triggered by a history of mental illness and erratic behavior together with an insanity defense, even though the defendant's conduct at trial suggested nothing and counsel never asked for an inquiry.¹⁴ The floor protects the defendant whose own condition keeps the problem from being raised. The rule describes what the court is allowed to do, and due process sometimes makes doing it necessary.

Competency also has to be kept apart from sanity, and a timeline shows why. Two moments are involved:

• At the time of the offense, the question is responsibility: whether mental disease or defect left the defendant without substantial capacity to appreciate the criminality of the conduct or to conform it to the law, and a successful answer produces an acquittal.¹⁵
• At the time of the proceedings, the question is competency: whether the defendant can now understand the charges and assist in the defense, and a negative answer suspends the case instead of ending it.¹⁶

Because the two moments differ, the answers can come apart in either direction. A defendant who is competent today may still have been legally insane when the offense occurred, and a defendant who was insane then may be fully competent now.¹⁷ Mental condition matters at a third moment as well: the Eighth Amendment bars carrying out a death sentence on a prisoner who is insane at the time of execution, which raises a separate question with its own procedural protections.¹⁸ Each moment asks about a different time, and a finding made for one does not answer the others.

The Model Penal Code reaches the same place with different wording, calling the issue fitness to proceed. Section 4.04 provides that no person who, as a result of mental disease or defect, lacks the capacity to understand the proceedings or to assist in the defense may be tried, convicted, or sentenced while that incapacity endures.¹⁹ The examination trigger sits in section 4.05, which directs the court to appoint a qualified psychiatrist whenever there is reason to doubt the defendant's fitness to proceed, so the Code makes the examination mandatory once doubt exists where the federal rule is permissive.²⁰ Section 4.06 then supplies the procedure. The court decides the question, and it may rest on the examiner's report alone if neither side contests it, while a contested finding requires a hearing at which the contesting party may cross-examine the psychiatrists.²¹ A finding of unfitness suspends the proceeding and commits the defendant to the custody of the designated state commissioner for as long as the unfitness lasts. When fitness returns the proceeding resumes, although the court may dismiss the charge if so much time has passed that resuming would be unjust.²² Unfitness therefore postpones the trial instead of ending the case, and in practice these commitments have to a significant extent displaced the sequence of trial, insanity acquittal, and commitment after acquittal.²³

Two errors recur on this topic. Students lose this issue by treating a competent finding as a ruling on sanity, when the examination speaks only to the defendant's condition now. The other error is reading the federal rule's permissive wording into the Model Penal Code, which requires the court to appoint a psychiatrist once there is reason to doubt fitness.²⁶

Examination After Insanity Notice

Rule 12.2(c)(1)(B) ties the government's examination power to the kind of notice the defendant has given, and it uses two different verbs to do so. After a notice under Rule 12.2(a), the court must, upon the government's motion, order the defendant to be examined under 18 U.S.C. § 4242; after a notice under Rule 12.2(b), the court may, upon the government's motion, order an examination under procedures the court itself sets.²⁸ The first branch depends on the insanity notice taught earlier, in which a defendant who intends to assert insanity at the time of the alleged offense must notify an attorney for the government in writing within the time for pretrial motions, or at a later time the court sets.²⁹ The second branch depends on the separate notice of expert evidence of a mental condition, which reaches a wider range of uses.³⁰ The two branches are easy to blur, so this section explains what triggers each examination, what each verb requires, and why the rule leaves the court less freedom after an insanity notice than after an expert notice. The § 4242 procedures themselves are outside what this chapter describes, since the rule supplies the statute's name and the analysis here needs nothing more.

The notice sets the examination in motion because of what the notice is for. Its purpose is to give the prosecution the opportunity to have the defendant examined by a neutral expert, and the rule accordingly authorizes the prosecution to move for an order requiring the defendant to submit to a mental examination.³¹ Mental state at the time of an offense is something only the defendant can describe from the inside, so a prosecutor who must meet a defense expert's opinion with no chance to test it would be answering with nothing. Procedures of this kind typically end with the examiner evaluating the defendant and testifying at trial, which gives the jury an independent opinion to weigh against the defense's own expert.³² Estelle v. Smith supplies the constitutional footing. When a defendant asserts an insanity defense and introduces supporting psychiatric testimony, silence may deprive the State of the only effective means it has of controverting proof on an issue the defendant injected into the case, and several courts of appeals have held that such a defendant can be required to submit to a sanity examination by the prosecution's psychiatrist.³³ The defendant in Estelle had introduced no psychiatric evidence and had given no sign that he would, which is why the examination there could not be defended as a sanity examination.³⁴ Notice is therefore the right trigger, because it is the defendant's own announcement that mental state will be in issue, and the examination follows from the defendant's choice to put it there.

The examination also depends on a motion. Both sentences of Rule 12.2(c)(1)(B) describe what the court does upon the government's motion, and neither describes the court ordering an examination on its own initiative in this setting.³⁵ The reason follows from who needs the examination: the government is the party that must respond to the defense, so the rule leaves to the government the judgment whether an examination would help it. The duty in the first branch is accordingly a duty to grant a proper motion. It does not describe an examination that occurs by itself once notice is filed, and students lose this point when they treat mandatory as meaning automatic, so that an insanity notice with no government motion is thought to compel an order.

The difference between must and may tracks the difference between the two notices. An insanity notice announces one defined question, whether the defendant was legally insane when the offense occurred, and a successful answer ends the prosecution in an acquittal followed by commitment. The government's interest in testing such a claim is strong, and a single statutory examination fits the issue, so a mandatory rule gives the prosecution that test without a contest over whether the claim deserves one. A notice under Rule 12.2(b) covers a wider and more variable field, because it concerns expert evidence of a mental condition that may bear on guilt or may be offered at a capital sentencing proceeding.³⁶ A mental condition offered to show that the defendant lacked the intent an offense requires calls for an examination different in subject and scope from one needed at sentencing. A court that may order an examination under procedures it sets can tailor the inquiry to what is actually in dispute, or decline an examination that would add nothing. Mandatory examination for the narrow, uniform issue and discretionary examination for the broad, varied one is the structure the two verbs express.

Model Penal Code Appointment of Psychiatrists

The Model Penal Code gives the court a duty at the point where the federal competency provision gave it only a power. Section 4.05(1) provides that the court shall appoint at least one qualified psychiatrist, or shall request the hospital's superintendent to designate one, to examine the defendant and report on the defendant's mental condition.⁴⁰ The verb is addressed to the court itself, and the text makes the duty depend on three circumstances, with no mention of a motion by either party. This section takes up those circumstances, then the optional commitment for observation, the place of the defense's own psychiatrist, and the method of examination. What the examiner's report must contain is the subject of the next section.

The duty arises when any one of three alternative circumstances exists.⁴¹ They appear in the text in this order:

• The defendant has filed a notice of intention to rely on the defense of mental disease or defect excluding responsibility.
• There is reason to doubt the defendant's fitness to proceed.
• There is reason to believe that mental disease or defect of the defendant will otherwise become an issue in the cause.

Each alternative answers a different way that mental condition can enter a case. The first is the defendant's own doing: the written notice announces that irresponsibility will be tried, so the court needs an examiner before the issue reaches the factfinder. The second reaches the situation described in the earlier discussion of fitness. The Code forbids trying, convicting, or sentencing a person who lacks capacity to understand the proceedings or assist in the defense while that incapacity lasts, and the court cannot tell whether the bar applies without a clinical opinion.⁴² The third alternative is the widest and works as a catch-all. A defendant who files no notice may still offer evidence of mental disease or defect to show that a state of mind required for the offense was missing, and the residual language lets the court obtain an examination in that setting.⁴³ Because the alternatives are joined by or, any single one is enough, and students lose this point when they treat the notice as the only trigger.

The duty runs to the court, and the court's own appointment gives the judge something the parties cannot supply. A psychiatrist retained by one side was chosen by a party with a stake in the answer, so a court deciding fitness or responsibility would otherwise hear only opinions each side selected for its own purposes. An examiner whom the court appoints, or whom the hospital designates at the court's request, supplies an independent clinical assessment. The wide third trigger follows from the same logic, because the court's need for that assessment does not depend on whether anyone has filed a notice. The hospital route serves a practical end as well, since a court ordinarily has no psychiatrists on its own staff, and the superintendent can name a qualified clinician, a designation that may be or include the superintendent personally.⁴⁴ The model text leaves the hospital's name blank, so an enacting state fills in its own institution.⁴⁵

The court may also order the defendant committed to a hospital or other suitable facility for the purpose of the examination, for up to sixty days or for such longer period as the court determines to be necessary.⁴⁶ The power is permissive, and its reason is practical: a thorough evaluation of mental condition can require observation over days or weeks, which a single courthouse interview cannot supply. The sixty-day figure works as a default ceiling, and going past it requires the court to determine that the longer period is necessary, so confinement before any adjudication does not stretch without a judicial finding. This commitment exists only for the examination. It is separate from the commitment of an unfit defendant described earlier and from the commitment after an insanity acquittal covered later in this chapter.

The court may further direct that a qualified psychiatrist retained by the defendant be permitted to witness and participate in the examination.⁴⁷ That participation comes by the court's direction, and the court-appointed examiner continues to examine and report, so the defense psychiatrist takes part without replacing anyone. The reason is that a defendant who could not see how the examination was conducted would have little ability to test its conclusions later, whereas a retained psychiatrist who was present can tell counsel what method was used and how the defendant responded. A separate provision protects the defendant's access afterward: when the defendant wishes to be examined by a psychiatrist or other expert of the defendant's own choosing, notwithstanding the court-appointed report, that examiner must be permitted reasonable access to the defendant.⁴⁸ Section 4.05(2) adds that any method accepted by the medical profession for examining those alleged to be suffering from mental disease or defect may be employed.⁴⁹ The provision leaves clinical technique to the profession instead of fixing it in the statute, which lets the examiner use whatever interview, observation, or testing the field regards as sound.

The three scenes differ only in which trigger is present, which is the whole inquiry on an exam: find any one of the alternatives, and appointment follows. Commitment for observation and participation by the defense psychiatrist are separate matters that the court may order, and neither is needed to make the appointment duty arise.

The Examiner's Report

The first two items carry no condition at all.⁵⁵ A description of the examination records what the examiner actually did, which matters because a conclusion about a person's mind can be weighed only by someone who knows how it was reached, and the judge and both lawyers will want to test the method before relying on the result. The diagnosis names the condition the examiner found, and it gives the capacity opinions that follow a clinical footing. Because every report contains both, even a report in a modest case tells the court what was done and what was found.

Items (c) and (d) both concern the defendant's capacities, and the difference between them is a difference in time. Item (c) looks at the present: if the defendant suffers from a mental disease or defect, the examiner gives an opinion on the defendant's capacity to understand the proceedings and to assist in the defense.⁵⁶ That is the fitness question from the earlier discussion of competency, and it is asked now because trial, conviction, or sentence still lies ahead. Item (d) looks backward: when notice of irresponsibility has been filed, the examiner gives an opinion on the extent, if any, to which the defendant's capacity to appreciate the criminality of the conduct, or to conform it to the requirements of law, was impaired at the time of the conduct charged.⁵⁷ The model text brackets the word wrongfulness as alternative wording for criminality, so an enacting jurisdiction may use either term.⁵⁸ Because the two opinions address different moments, they can come out differently, and the report has to keep them apart. A defendant may be fit for trial today and still have lacked the capacity to conform to the law on the day of the offense, or may be unable to assist counsel now after having been fully responsible then, and the words if any in item (d) allow the examiner to report no impairment at all.

The two items also differ in what triggers them. Item (c) depends on a finding that the defendant suffers from a mental disease or defect, while item (d) depends on the filing of the irresponsibility notice, a step the defendant takes.⁵⁹ Tying item (d) to the notice keeps the examiner on the issues actually in play, since a defendant who has not announced the defense has not put the time-of-offense question before the court, and an opinion on it would answer a question nobody asked. The link to the appointment duty in § 4.05(1) follows directly. That duty can arise from reason to doubt fitness, or from reason to believe mental disease will otherwise become an issue, with no notice on file, so a report in such a case contains items (a) and (b) and, if the examiner finds a mental disease or defect, item (c), but the Code does not require item (d).⁶⁰ Students lose this point when they assume every report addresses the time of the offense, because only a filed notice puts that opinion into the report.

The fifth item applies the same logic in a stricter form: an opinion on the capacity to have a particular state of mind is included only when the court directs it.⁶¹ The question matters only if the offense charged has a mental-state element that the defense puts in doubt by pointing to mental disease or defect, and the judge, who knows both the charge and the defense, is the person positioned to decide whether that question is live. Leaving the item to the court's direction spares examiners from opining in every case on a capacity that no element of the offense calls for, and it lets the court add the question in the cases where it arises. Item (e) therefore differs from item (d) in its trigger: a party's filing sets off item (d), and the court's own direction is the only trigger the text gives for item (e). Both items differ in subject from item (d)'s concern with the capacities that bear on irresponsibility, since item (e) asks whether the defendant could have held the intent, knowledge, or other mental state that the offense definition names.

The Code also deals with a defendant who will not cooperate. If the examination cannot be conducted because the defendant is unwilling to participate, the report must say so and must include, if possible, an opinion on whether the unwillingness resulted from mental disease or defect.⁶² Two reasons support this provision. A refusal that went unrecorded would silently defeat the process, leaving the court to wonder whether an examination happened and what it found. The second reason is subtler: unwillingness can itself be a symptom, as when a defendant who is delusional about the examiner refuses to speak, and a refusal that comes from the disorder carries a different meaning from one that is a calculated choice. The words if possible acknowledge that an examiner who could not examine may be unable to say which kind of refusal occurred. The provision assigns the examiner a reporting task and states no consequence for the court to attach, so the effect of the refusal is left to the court.

The report is filed with the clerk of the court, who causes copies to be delivered to the district attorney and to counsel for the defendant.⁶³ The model text brackets the words in triplicate, which marks the number of copies as a clerical detail for an enacting state to settle. The routing matters because the examiner was appointed by the court. A report sent privately to one side would invite selective use, and delivery through the clerk puts the court and both parties in front of the same document. What use may be made of the defendant's statements during the examination is a separate question, taken up in the next section.

The three scenes show that the content of a report is set by conditions in the text. The examiner always describes and diagnoses, then adds the capacity opinions that a mental disease finding, a filed notice, or a court direction calls for, and a refusal to cooperate changes what the report says without removing the duty to report.

Protection of Examination Statements

An examination under Rule 12.2 can be ordered over the defendant's objection, so the defendant controls neither the questions asked in the examiner's room nor the answers that come out. That loss of control creates the danger left open at the end of the discussion of the examiner's report: a compelled conversation with a state-appointed examiner could become a way of obtaining admissions that the government could never compel from the defendant on the witness stand. Federal Rule of Criminal Procedure 12.2(c)(4) answers the danger with a limit on use. No statement the defendant makes in the course of an examination under the rule, no expert testimony based on that statement, and no other fruits of the statement may be admitted into evidence against the defendant in any criminal proceeding, whether the examination was conducted with or without the defendant's consent, subject to the exception discussed below.⁶⁹

Each part of that limit closes a different route by which the examination could reach the factfinder. The statement itself is the obvious route, since a defendant who describes the offense to the examiner has made an admission. The expert's testimony based on the statement closes the second route, because an examiner who could repeat the same account inside an opinion would deliver the admission to the jury under the label of diagnosis. The third route is the fruits of the statement, meaning evidence the government finds by following up on what the defendant said, such as a witness or an object the statement revealed. Two phrases in the rule carry further reasons. The words any criminal proceeding carry the protection past the trial in which the examination occurred, so a later prosecution cannot use the examination either. The words with or without the defendant's consent remove any argument that cooperation waived the protection or that compulsion forfeited it. The underlying incentive is easy to state: if the government could use these statements to prove guilt, a compelled examination would work as compelled self-incrimination, and defendants would have good reason never to raise a mental-condition issue at all.

The constitutional footing for this protection appears in Estelle v. Smith, where the Court held that the Fifth Amendment privilege was implicated when the State used a defendant's statements from a court-ordered competency examination as affirmative evidence in seeking a death sentence.⁷⁰ The defendant there had been indicted for murder, and the trial judge had ordered the evaluation to determine his competency to stand trial. At the capital sentencing hearing the State's only witness was the psychiatrist who conducted that ninety-minute examination, and he testified that the defendant was a severe sociopath who would continue his criminal behavior and felt no remorse.⁷¹ The State argued that the privilege was not involved because the defendant's communications were nontestimonial, like a voice or handwriting exemplar. The Court rejected that argument because the diagnosis rested largely on the defendant's account of the crime and on what he left out in telling it, so the State was using the substance of his disclosures against him.⁷² The Court added that the examination was ordered for the limited and neutral purpose of testing competency, and its results could not be turned to a broader objective plainly adverse to the defendant.⁷³ Two concurring Justices would have decided the case on the Sixth Amendment ground alone, reasoning that counsel for an indicted defendant should have been told of the examination in advance.⁷⁴

The protection operates as a shield for the defendant, and it does not extend to letting a defendant present mental-condition evidence while keeping the government from answering it. Estelle itself drew that line by distinguishing a defendant who asserts an insanity defense and introduces supporting psychiatric testimony: such a defendant's silence may deprive the State of the only effective means of controverting proof on an issue the defendant injected into the case, and courts of appeals had therefore allowed the State's psychiatrist to examine that kind of defendant.⁷⁵ Rule 12.2(c)(4) builds the same distinction into its text. The statements and the expert testimony based on them may be admitted on an issue regarding mental condition on which the defendant has introduced evidence of incompetency or evidence requiring notice under Rule 12.2(a) or (b)(1), and also on an issue on which the defendant has introduced expert evidence in a capital sentencing proceeding requiring notice under Rule 12.2(b)(2).⁷⁶ The exception follows the defendant's own choice because the defendant alone decides whether mental condition is in play. A defendant who offers no such evidence leaves the examination with nothing to answer, while one who offers an expert's account of mental condition invites the government's expert to test it, and without that test the factfinder would hear only one side. The exception is also tied to a single issue: it opens the examination only on the mental-condition issue the defendant raised, and the protection continues on every other issue.

The two scenes differ in only one fact, whether the defendant put mental condition in issue, and that fact alone moved the answer. Capital cases add two mechanics that follow the same logic. When the defendant has given notice under Rule 12.2(b)(2) of expert evidence on mental condition for sentencing and the court orders an examination solely under Rule 12.2(c)(1), the results and reports are sealed, and neither the government's attorneys nor the defendant's may see them unless the defendant is found guilty of a capital crime and confirms an intent to offer that expert evidence at sentencing.⁷⁹ Sealing keeps the government from learning anything about a defendant who may be acquitted, or may abandon the mental-condition evidence, before the issue ever arises. Once the government's results are disclosed, the defendant must disclose the results and reports of any examination by the defense expert about which the defendant intends to introduce expert evidence.⁸⁰ That reciprocal duty prevents the defense from drawing on the government's examination while keeping its own expert's findings out of view.

The Defendant's Right to Expert Help

Everything covered so far in this chapter concerns examinations that the court or the government obtains. The defense-side counterpart arises because an insanity defense rarely succeeds without expert testimony, and a defendant who is indigent, meaning unable to pay for experts, cannot buy the help that better-funded defendants and the State obtain as a matter of course. In Ake v. Oklahoma the Court held that this gap is a constitutional problem and fixed the circumstances in which the State must close it.⁸²

The reasoning starts from what a psychiatrist actually does in a case like this. A psychiatrist gathers facts through examination and interviews, analyzes them to draw conclusions about the defendant's condition and its effect on behavior, offers an opinion on how the condition may have shaped conduct at the time of the offense, and knows which questions to put to the other side's psychiatrists and how to read their answers.⁸³ A lay witness can only describe symptoms that seem relevant, while an expert can recognize symptoms that are easy to miss or misread and can tell the jury why they matter.⁸⁴ That help carries extra weight because psychiatry is inexact. Psychiatrists disagree widely about diagnosis, juries remain the primary factfinders on insanity, and jurors must choose between competing expert accounts.⁸⁵ A jury that hears only the State's expert has no competing account to weigh. A diagnosis standing alone also does not settle legal insanity, since an expert must reconstruct the defendant's mental state at the time of the offense, often months earlier, and connect it to the legal test.⁸⁶ Without a psychiatrist to examine the defendant on issues relevant to the defense, to help decide whether the insanity defense is viable, to testify, and to help prepare cross-examination of the State's psychiatric witnesses, the Court concluded, the risk of an inaccurate resolution of the sanity issue is extremely high.⁸⁷ Against that risk the State's interest in saving money must yield, because the gain in accuracy is large and the burden on the State is comparatively slight.⁸⁸

The holding is phrased as a floor. When a defendant demonstrates to the trial judge that sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.⁸⁹ Each phrase does work. The word access describes what the State owes, a psychiatrist the defendant can use. The word competent sets a quality standard, so a nominal appointment does not satisfy it. The final clause describes a role on the defense side, covering examination, evaluation, preparation, and presentation, which goes beyond a neutral examiner who reports to the court.

The trigger is the threshold showing, a demonstration to the trial judge, made ex parte (without the prosecution taking part), that sanity is likely to be a significant factor in the defense. The showing exists because a defendant's mental condition is not at issue in every criminal case, and psychiatric assistance is unlikely to be of probable value where it is not. The risk of error from going without an expert, and the value of having one, are highest when mental condition is seriously in question.⁹⁰ The requirement therefore keeps the State from supplying an expert to every indigent defendant who asks. Because the showing goes to the judge alone, a defendant can qualify without previewing the defense theory for the prosecution.

The remedy is also narrow. The Court said the indigent defendant has no constitutional right to choose a psychiatrist of personal liking or to receive funds to hire one, and it left to the States the decision how to implement the right.⁹¹ The right protects the accuracy of the sanity determination, and a competent psychiatrist serves that interest, so students who read the case as a promise of no right to choose a favorite expert's absence have the limit backward: the defendant has a right to competent help and no right to select the helper. In Ake the facts that satisfied the showing were these:

• His sole defense was insanity.
• His behavior at arraignment, four months after the offense, was so bizarre that the trial judge on his own initiative ordered a competency examination.
• A state psychiatrist soon found him incompetent to stand trial and suggested commitment.
• Six weeks later he was found competent only on the condition that he be sedated with large doses of Thorazine three times a day during trial.
• The psychiatrists who examined him described the severity of his mental illness less than six months after the offense and suggested it might have begun many years earlier.
• Oklahoma recognizes the insanity defense and places the initial burden of producing evidence on the defendant.⁹²

Taken together, those facts made it clear that sanity was likely to be a significant factor, so the Court reversed and remanded for a new trial.⁹³ The last fact matters because a defendant who must produce evidence of insanity needs an expert to put the defense before the jury at all.

The right reaches beyond the guilt phase in one setting. Ake's own psychiatric treatment at a state hospital produced testimony at the guilt phase that his mental illness made him a threat of continuing criminal violence. Oklahoma treated future dangerousness as an aggravating factor in its capital sentencing scheme, and the prosecutor relied on it.⁹⁶ The Court therefore held that when the State presents psychiatric evidence of future dangerousness at a capital sentencing proceeding, due process requires the defendant to have access to a psychiatric examination on the relevant issues, to the psychiatrist's testimony, and to assistance in preparation.⁹⁷ The reason is the same one that drives the trial-phase rule. Without a psychiatrist the defendant cannot offer a well-informed opposing view, and so loses a significant chance to raise doubts in the jurors' minds about the State's proof of the aggravating factor, in a setting where the consequence of error is so great.⁹⁸

The Model Penal Code approaches the same concern from the access side. Under § 4.05(1), the court may direct that a qualified psychiatrist retained by the defendant be permitted to witness and participate in the court-ordered examination.⁹⁹ Section 4.07(2) adds that when a defendant wishes to be examined by a qualified psychiatrist or other expert of his own choice notwithstanding the court-appointed report, that examiner must be permitted reasonable access to the defendant.¹⁰⁰ The first provision is discretionary for the court and the second is mandatory, but both assume the defendant already has an expert and guarantee only that the expert can reach the defendant. The constitutional right addresses the defendant who has no expert and cannot afford one, and it requires the State to supply one. The two operate together: a defendant who retains an expert relies on the Code's access provisions, while one who cannot pay relies on the threshold showing.