In the past our court routinely appointed a single expert to examine someone who claimed to be incompetent to stand trial because of mental illness or retardation. Even if notice of intent to rely on an 8.01 defense had not been filed, the court also asked the expert to make a determination and report on the defendant's state of sanity at the time of the offense and the matters referred to in 46.03 sec. 3 (d). Now I see that 46B.025(c) apparently prohibits this practice (apparently for the reason as Shannon explained in his Prosecutor article that issues arise over the admissibility of a defendant's statements to the examiner when made during a joint competency/sanity examination). But, 46.03 sec. 3(g) was left unchanged. What does all this mean? In my case the defendant has already filed a notice under 46.03 sec. 2 (a). Can a joint competency/sanity exam be ordered? Must separate examiners be appointed under 46.03 (a) and 46B.021? Anyone willing to fax me whatever orders they began using in response to these issues after January 1 please do so: 254-435-2952.

FYI, my recollection is that CCP 46B.025(c) was initially raised at the request of the medical profession who perceived a professional conflict in those cases; it then gained momentum when the defense bar raised the issue regarding problems with the admissibility of statements.

They way I read the two applicable statutes together, CCP 46B.025(c) allows an expert to examine for both incompetency and insanity, but incompetency must be done first, and if the expert determines the defendant to be incompetent to stand trial, he can no longer continue with an insanity evaluation. However, if the expert concludes that the defendant is competent to stand trial, the expert may proceed on to an insanity evaluation. Of course, this presupposes that the defendant requested an incompetency determination under 46B. And I think that requires separate orders OR a joint order laying out the applicable authority for ordering both together.

We've received periodic calls on this, so I'm sure someone out there has run across it already ... anyone? ... anyone? ... Bueller?

I think Shannon recalls it correctly. I could see the difficulty in having an expert make a determination of incompetency and nonetheless make a determination of sanity. Most experts that I have worked with would have stopped at a finding of incompetency (because they can't get reliable information from the defendant).