Art. 905.5.1.  Mental retardation

A.  Notwithstanding any other provisions of law to the contrary, no person who is mentally retarded shall be subjected to a sentence of death.

B.  Any capital defendant who claims to be mentally retarded shall file written notice thereof within the time period for filing of pretrial motions as provided by Code of Criminal Procedure Article 521.

C.(1)  Any defendant in a capital case making a claim of mental retardation shall prove the allegation by a preponderance of the evidence.  The jury shall try the issue of mental retardation of a capital defendant during the capital sentencing hearing unless the state and the defendant agree that the issue is to be tried by the judge.  If the state and the defendant agree, the issue of mental retardation of a capital defendant may be tried prior to trial by the judge alone.

(2)  Any pretrial determination by the judge that a defendant is not mentally retarded shall not preclude the defendant from raising the issue at the penalty phase, nor shall it preclude any instruction to the jury pursuant to this Section.

D.  Once the issue of mental retardation is raised by the defendant, and upon written motion of the district attorney, the defendant shall provide the state, within time limits set by the court, any and all medical, correctional, educational, and military records, raw data, tests, test scores, notes, behavioral observations, reports, evaluations, and any other information of any kind reviewed by any defense expert in forming the basis of his opinion that the defendant is mentally retarded.

E.  By filing a notice relative to a claim of mental retardation under this Article, the defendant waives all claims of confidentiality and privilege to, and is deemed to have consented to the release of, any and all medical, correctional, educational, and military records, raw data, tests, test scores, notes, behavioral observations, reports, evaluations, expert opinions, and any other such information of any kind or other records relevant or necessary to an examination or determination under this Article.

F.  When a defendant makes a claim of mental retardation under this Article, the state shall have the right to an independent psychological and psychiatric examination of the defendant.  A psychologist or medical psychologist conducting such examination must be licensed by the Louisiana State Board of Examiners of Psychologists or the Louisiana State Board of Medical Examiners, whichever is applicable.  If the state exercises this right, and upon written motion of the defendant, the state shall provide the defendant, within time limits set by the court, any and all medical, correctional, educational, and military records, and all raw data, tests, test scores, notes, behavioral observations, reports, evaluations, and any other information of any kind reviewed by any state expert in forming the basis of his opinion that the defendant is not mentally retarded.  If the state fails to comply with any such order, the court may impose sanctions as provided by Article 729.5.

G.  If the defendant making a claim of mental retardation fails to comply with any order issued pursuant to Paragraph D of this Article, or refuses to submit to or fully cooperate in any examination by experts for the state pursuant to either Paragraph D or F of this Article, upon motion by the district attorney, the court shall neither conduct a pretrial hearing concerning the issue of mental retardation nor instruct the jury of the prohibition of executing mentally retarded defendants.

H.(1)  ”Mental retardation” means a disability characterized by significant limitations in both intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical adaptive skills.  The onset must occur before the age of eighteen years.

(2)  A diagnosis of one or more of the following conditions does not necessarily constitute mental retardation:

(a)  Autism.

(b)  Behavioral disorders.

(c)  Cerebral palsy and other motor deficits.

(d)  Difficulty in adjusting to school.

(e)  Emotional disturbance.

(f)  Emotional stress in home or school.

(g)  Environmental, cultural, or economic disadvantage.

(h)  Epilepsy and other seizure disorders.

(i)  Lack of educational opportunities.

(j)  Learning disabilities.

(k)  Mental illness.

(l)  Neurological disorders.

(m)  Organic brain damage occurring after age eighteen.

(n)  Other handicapping conditions.

(o)  Personality disorders.

(p)  Sensory impairments.

(q)  Speech and language disorders.

(r)  A temporary crisis situation.

(s)  Traumatic brain damage occurring after age eighteen.

Acts 2003, No. 698, §1; Acts 2009, No. 251, §1, eff. Jan. 1, 2010.