RULE 3.202. EXPERT TESTIMONY OF MENTAL MITIGATION
DURING PENALTY PHASE OF CAPITAL TRIAL;
NOTICE AND EXAMINATION BY STATE EXPERT

(a) Notice of Intent to Seek Death Penalty. The provisions
of this rule apply only in those capital cases in which the state gives
timely written notice of its intent to seek the death penalty.

(b) Notice of Intent to Present Expert Testimony of
Mental Mitigation. When in any capital case, in which the state
has given notice of intent to seek the death penalty under
subdivision (a) of this rule, it shall be the intention of the defendant
to present, during the penalty phase of the trial, expert testimony of
a mental health professional, who has tested, evaluated, or
examined the defendant, in order to establish statutory or
nonstatutory mental mitigating circumstances, the defendant shall
give written notice of intent to present such testimony.

(c) Time for Filing Notice; Contents. The defendant shall
give notice of intent to present expert testimony of mental
mitigation not less than 20 days before trial. The notice shall
contain a statement of particulars listing the statutory and
nonstatutory mental mitigating circumstances the defendant
expects to establish through expert testimony and the names and
addresses of the mental health experts by whom the defendant
expects to establish mental mitigation, insofar as is possible.
(d) Appointment of State Expert; Time of Examination.
After the filing of such notice and on the motion of the state
indicating its desire to seek the death penalty, the court shall order
that, within 48 hours after the defendant is convicted of capital
murder, the defendant be examined by a mental health expert
chosen by the state. Attorneys for the state and defendant may be
present at the examination. The examination shall be limited to
those mitigating circumstances the defendant expects to establish
through expert testimony.

(e) Defendant’s Refusal to Cooperate. If the defendant
refuses to be examined by or fully cooperate with the state’s mental
health expert, the court may, in its discretion:

(1) order the defense to allow the state’s expert to
review all mental health reports, tests, and evaluations by the
defendant’s mental health expert; or

(2) prohibit defense mental health experts from
testifying concerning mental health tests, evaluations, or
examinations of the defendant.

Committee Note

2016 Amendment. This is a new rule, in response to
legislation, and intended to complement Florida Rules of Criminal
Procedure 3.181 (Notice to Seek Death Penalty) and 3.780
(Sentencing Hearing for Capital Cases).