13-753

13-753. Mental evaluations of capital
defendants; hearing; appeal; definitions

A. In any case in which the state files a notice of intent to seek the
death penalty, a person who is found to have mental retardation pursuant to this section
shall not be sentenced to death but shall be sentenced to life or natural life.

B. If the state files a notice of intent to seek the death penalty, the court,
unless the defendant objects, shall appoint a prescreening psychological expert in order
to determine the defendant's intelligence quotient using current community, nationally
and culturally accepted intelligence testing procedures. The prescreening psychological
expert shall submit a written report of the intelligence quotient determination to the
court within ten days of the testing of the defendant. If the defendant objects to the
prescreening, the defendant waives the right to a pretrial determination of mental
retardation status. The waiver does not preclude the defendant from offering evidence of
the defendant's mental retardation in the penalty phase.

C. If the prescreening psychological expert determines that the defendant's
intelligence quotient is higher than seventy-five, the notice of intent to seek the death
penalty shall not be dismissed on the ground that the defendant has mental retardation.
If the prescreening psychological expert determines that the defendant's intelligence
quotient is higher than seventy-five, the report shall be sealed by the court and be
available only to the defendant. The report shall be released on the motion of any party
if the defendant introduces the report in the present case or is convicted of an offense
in the present case and the sentence is final. A prescreening determination that the
defendant's intelligence quotient is higher than seventy-five does not prevent the
defendant from introducing evidence of the defendant's mental retardation or diminished
mental capacity at the penalty phase of the sentencing proceeding.

D. If the prescreening psychological expert determines that the defendant's
intelligence quotient is seventy-five or less, the trial court, within ten days of
receiving the written report, shall order the state and the defendant to each nominate
three experts in mental retardation, or jointly nominate a single expert in mental
retardation. The trial court shall appoint one expert in mental retardation nominated by
the state and one expert in mental retardation nominated by the defendant, or a single
expert in mental retardation jointly nominated by the state and the defendant, none of
whom made the prescreening determination of the defendant's intelligence quotient. The
trial court, in its discretion, may appoint an additional expert in mental retardation
who was neither nominated by the state nor the defendant, and who did not make the
prescreening determination of the defendant's intelligence quotient. Within forty-five
days after the trial court orders the state and the defendant to nominate experts in
mental retardation, or on the appointment of such experts, whichever is later, the state
and the defendant shall provide to the experts in mental retardation and the court any
available records that may be relevant to the defendant's mental retardation status. The
court may extend the deadline for providing records on good cause shown by the state or
defendant.

E. Not less than twenty days after receipt of the records provided pursuant to
subsection D of this section, or twenty days after the expiration of the deadline for
providing the records, whichever is later, each expert in mental retardation shall
examine the defendant using current community, nationally and culturally accepted
physical, developmental, psychological and intelligence testing procedures, for the
purpose of determining whether the defendant has mental retardation. Within fifteen days
of examining the defendant, each expert in mental retardation shall submit a written
report to the trial court that includes the expert's opinion as to whether the defendant
has mental retardation.

F. If the scores on all the tests for intelligence quotient administered to the
defendant are above seventy, the notice of intent to seek the death penalty shall not be
dismissed on the ground that the defendant has mental retardation. This does not preclude
the defendant from introducing evidence of the defendant's mental retardation or
diminished mental capacity at the penalty phase of the sentencing proceeding.

G. No less than thirty days after the experts in mental retardation submit reports
to the court and before trial, the trial court shall hold a hearing to determine if the
defendant has mental retardation. At the hearing, the defendant has the burden of proving
mental retardation by clear and convincing evidence. A determination by the trial court
that the defendant's intelligence quotient is sixty-five or lower establishes a
rebuttable presumption that the defendant has mental retardation. Nothing in this
subsection shall preclude a defendant with an intelligence quotient of seventy or below
from proving mental retardation by clear and convincing evidence.

H. If the trial court finds that the defendant has mental retardation, the trial
court shall dismiss the intent to seek the death penalty, shall not impose a sentence of
death on the defendant if the defendant is convicted of first degree murder and shall
dismiss one of the attorneys appointed under rule 6.2, Arizona rules of criminal
procedure unless the court finds that there is good cause to retain both attorneys. If
the trial court finds that the defendant does not have mental retardation, the court's
finding does not prevent the defendant from introducing evidence of the defendant's
mental retardation or diminished mental capacity at the penalty phase of the sentencing
proceeding.

I. Within ten days after the trial court makes a finding on mental retardation, the
state or the defendant may file a petition for special action with the Arizona court of
appeals pursuant to the rules of procedure for special actions. The filing of the
petition for special action is governed by the rules of procedure for special actions,
except that the court of appeals shall exercise jurisdiction and decide the merits of the
claims raised.

J. This section applies to all capital sentencing proceedings.

K. For the purposes of this section, unless the context otherwise requires:

1. "Adaptive behavior" means the effectiveness or degree to which the defendant
meets the standards of personal independence and social responsibility expected of the
defendant's age and cultural group.

2. "Expert in mental retardation" means a psychologist or physician licensed
pursuant to title 32, chapter 13, 17 or 19.1 with at least five years' experience in the
testing or testing assessment, evaluation and diagnosis of mental retardation.

3. "Mental retardation" means a condition based on a mental deficit that involves
significantly subaverage general intellectual functioning, existing concurrently with
significant impairment in adaptive behavior, where the onset of the foregoing conditions
occurred before the defendant reached the age of eighteen.

4. "Prescreening psychological expert" means a psychologist licensed pursuant to
title 32, chapter 19.1 with at least five years' experience in the testing, evaluation
and diagnosis of mental retardation.

5. "Significantly subaverage general intellectual functioning" means a full scale
intelligence quotient of seventy or lower. The court in determining the intelligence
quotient shall take into account the margin of error for the test administered.