Pretrial discovery of mental health issues

(1) Order If the notice of the defendant or subsequent inquiry by the judge or developments in the case indicate that statements of the defendant as to the defendant’s mental condition will be relied upon by a defendant’s expert witness, the judge, on the judge’s own motion or on motion of the prosecutor, may order the defendant to submit to an examination consistent with the provisions of the General Laws and subject to the following terms and conditions: (A) The examination shall include such physical, psychiatric, and psychological tests as the examiner deems necessary to form an opinion as to the mental condition of the defendant at the relevant time. No examination based on statements of the defendant may be conducted unless the judge has found that (i) the defendant then intends to offer into evidence expert testimony based on the defendant’s own statements or (ii) there is a reasonable likelihood that the defendant will offer that evidence. (B) No statement, confession, or admission, or other evidence of or obtained from the defendant during the course of the examination, except evidence derived solely from physical examinations or tests, may be revealed to the prosecution or anyone acting on its behalf unless so ordered by the judge. (C) The examiner shall file with the court a written report as to the mental condition of the defendant at the relevant time. (2) Sealing of examiner report Unless the parties mutually agree to an earlier time of disclosure, the examiner’s report shall be sealed and shall not be made available to the parties unless (A) the judge determines that the report contains no matter, information, or evidence which is based upon statements of the defendant as to the defendant’s mental condition at the relevant time or which is otherwise within the scope of the privilege against self-incrimination; or (B) the defendant files a motion requesting that the report be made available to the parties; or (C) after the defendant expresses the clear intent to raise as an issue the defendant’s mental condition, the judge is satisfied that (i) the defendant intends to testify, or (ii) the defendant intends to offer expert testimony based in whole or in part on statements made by the defendant as to the defendant’s mental condition at the relevant time. (3) Discovery of defense report At the time the report of the prosecution’s examiner is disclosed to the parties, the defendant shall provide the prosecutor with a report of the defense psychiatric or psychological expert(s) as to the mental condition of the defendant at the relevant time. (4) Content of reports The reports of both parties’ experts must include a written summary of the expert’s expected testimony that fully describes: the defendant’s history and present symptoms; any physical, psychiatric, and psychological tests relevant to the expert’s opinion regarding the issue of mental condition and their results; any oral or written statements made by the defendant relevant to the issue of the mental condition for which the defendant was evaluated; the expert’s opinions as to the defendant’s mental condition, including the bases and reasons for these opinions; and the witness’s qualifications. (5) Redaction of reports If these reports contain both privileged and nonprivileged matter, the judge may, if feasible, at such time as it deems appropriate prior to full disclosure of the reports to the parties, make available to the parties the nonprivileged portions. (6) Failure to comply If a defendant refuses to submit to an examination ordered pursuant to and subject to the terms and conditions of this rule, the judge may prescribe such remedies as the judge deems warranted by the circumstances, which may include exclusion of the testimony of any expert witness offered by the defense on the issue of the defendant’s mental condition or the admission of evidence of the refusal of the defendant to submit to examination.