Rule 12.4 Disclosure of Mental Health Evidence; Reports of Appointed

Comment Under Rule 12.4, all expert reports produced pursuant to Rule 12 are to be disclosed to the court, to the defendant’s attorney, and to the prosecuting attorney. Only one item of the report is excepted -- the defendant’s statements concerning the actual offense charged. The United States Supreme Court has recognized that use of a defendant’s statements during a court-ordered examination may compromise the defendant’s right against self-incrimination. See Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981)

(defendant’s privilege against self-incrimination was violated when he was not advised of right to remain silent during court-ordered examination and prosecution introduced statements). See also MRE 503 cmt. (“No statement made by an accused in the course of an examination into competency to stand trial is admissible on the issue of guilt”). Thus, the prosecution may not make use of evidence obtained by compulsory mental examination of the defendant unless the defendant offers, either directly or through cross-examination, evidence in support of the affirmative defense of insanity. See Powell v. Texas, 492 U.S. 680, 683-84, 109 S. Ct. 3146, 3149, 106 L. Ed. 2d 551 (1989) (defendant waives the privilege if the defendant introduces expert testimony on mental condition).