These courts have held that a defendant's Fifth Amendment rights are not violated by a court ordered mental health examination when the defendant has provided notice of intent to produce mental health expert testimony in support of a mitigating factor at sentencing. See, United States v. Webster, 162 F.3d 308, 340 (5th Cir. 1998); United States v. Beckford, 962 F. Supp. 748 (E.D.Va. 1997); United States v. Hawort, 942 F. Supp. 1406 (D.N.M. 1996); United States v. Vest, 905 F. Supp. 651 (W.D.Mo. 1995); Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (2000). If the defendant introduces evidence or testimony at trial related to an examination of the defendant by a mental health expert, the Government may, in some cases, independently examine the mental health of the defendant.

Where a Defendant has indicated an intent to introduce mental health testimony during the penalty phase of a capital trial, courts implement safeguards to protect a defendant's constitutional rights while also “allowing the Government a meaningful right of rebuttal on mental health issues” by permitting a mental health expert selected by the Government to examine the defendant. United States v. Taylor, 320 F.Supp.2d 790, 792 (N.D. Ind. 2004); see also United States v. Vest, 905 F.Supp. 651, 653 (W.D. Mo. 1995) (“[U]nless a government-selected mental health expert is permitted to examine defendant, the provision authorizing rebuttal is rendered meaningless.”).

t grounds, to answer questions put to him by the government's experts."); United States v. Taylor, 320 F.Supp.2d 790, 793 (N.D.Ind. 2004) (the defendant's Fifth and Sixth Amendment rights "are not infringed by this Court's Order directing him to submit to a mental health exam conducted by the Government's mental health expert since he has indicated that he intends to introduce mental health evidence during the penalty phase," and the court's order "provides safeguards to ensure that [the defendant's] statements cannot be used against him at [a] sentencing hearing unless and until he actually introduces mental health evidence in mitigation of the death penalty at that phase of the proceedings."); United States v. Beckford, 962 F.Supp. 748, 763 (E.D.Va. 1997) ("[I]f a defendant elects, with the advice of counsel, to put his mental status into issue in the penalty phase, then he has waived his right to refrain from self-incrimination, and there is no Fifth or Sixth Amendment concern."); United States v. Vest, 905 F.Supp. 651, 653 (W.D.Mo. 1995) ("If a defendant elects, with advice from counsel, to put his mental status into issue in the penalty phase, then he has waived his right to refrain from self-incrimination arising from mental health examination, and there is no Fifth Amendment implication."). However, the court has found no federal cases providing more specific guidance on the issue of whether the government's experts can ask the defendant questions about the charged offenses, whether the defendant can be compelled to answer such questions, and whether the defendant's answers — or refusals to answer — can be used against her to rebut her evidence in support of a mental health mitigating factor during the "penalty phase."

In recognition of this fundamental principle, the only decisions which have addressed this precise issue in the context of a federal capital case have adopted some of the notice and discovery procedures the Government requests here. In United States v. Vest, 905 F. Supp. 651 (W.D.Mo. 1995), three defendants were charged with capital offenses under 21 U.S.C. § 848(e). The Government made a motion for entry of an order: (1) requiring notice of intent to rely on mental health defenses at the penalty phase by a date certain; (2) permitting access to the defendants for examination by government experts; and (3) requiring production of reports prepared by defense experts.

21 F. Supp. 2d at 1199. See also United States v. Vest, 905 F. Supp. 651, 653 (W.D. Mo. 1995) (invoking authority to employ "a similar process in Rule 12.2 for the penalty phase [] serves the dual purposes of promoting efficient and fair resolution of the issues at hand while preserving the defendants' Constitutional rights"); United States v. Richter, 488 F.2d 170, 173-74 (9th Cir. 1973) ("It is recognized that wide latitude is reposed in the district court to carry out successfully its mandate to effectuate, as far as possible, the speedy and orderly administration of justice"). Fed. R. Crim. P. 57(b) provides in pertinent part: "A judge may regulate practice in any manner consistent with federal law, [the Rules of Criminal Procedure], and local rules of the district."

Prior to the Rule's amendment on December 1, 2002, several courts fashioned their own procedures in capital cases where a defendant's mental health might be an issue at sentencing. See, e.g., United States v. Allen, 247 F.3d 741 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002);United States v. Minerd, 197 F. Supp. 2d 272 (W.D. Pa. 2002);United States v. Edelin, 134 F. Supp. 2d 45 (D.D.C. 2001);United States v. Beckford, 962 F. Supp. 748 (E.D. Va. 1997);United States v. Haworth, 942 F. Supp. 1406 (D.N.M. 1996);United States v. Vest, 905 F. Supp. 651 (W.D. Mo. 1995). As discussed below, some of the procedures employed by those courts are no longer permissible because the new Rule limits the court's discretion in certain areas.

Courts addressing this issue have also reasoned that the government's ability to rebut any information presented in mitigation would be "rendered meaningless" if a government-selected mental health expert were not permitted to examine the defendant. United States v. Vest, 905 F. Supp. 651, 653 (W.D.Mo. 1995). See, also United States v. Haworth, 942 F. Supp. 1406, 1407-08 (D.N.M. 1996); Beckford, 962 F. Supp. at 757.

Although the rules discussed above do not explicitly govern the penalty phase of trial, several other courts have addressed this question and determined that the Government must have advance notice, access to the reports prepared by a defendant's mental health experts in order to rebut the accuracy of the conclusions reached therein, and an opportunity to examine the defendant prior to trial. See United States v. Beckford, 962 F. Supp. 748, 760 (E.D.Va. 1997); United States v. Vest, 905 F. Supp. 651, 652 (W.D.Mo. 1995). However, courts have disagreed as to the necessity of sealing the results of the expert's examination until after the guilt phase of trial.

Hall has cited several cases in which district courts have imposed such a safeguard. See United States v. Beckford, 962 F. Supp. 748, 761 (E.D.Va. 1997); United States v. Haworth, 942 F. Supp. 1406, 1408-09 (D.N.M. 1996); United States v. Vest, 905 F. Supp. 651, 654 (W.D.Mo. 1995). While we acknowledge that such a rule is doubtless beneficial to defendants and that it likely advances interests of judicial economy by avoiding litigation over whether particular pieces of evidence that the government seeks to admit prior to the defendants offering psychiatric evidence were derived from the government psychiatric examination, we nonetheless conclude that such a rule is not constitutionally mandated:

efore amendment of the Rule, taking the same approach to timing of mental examination); United States v. Allen, 247 F.3d 741, 775 (8th Cir.2001) (same) (affirming district court order), cert. denied sub nom.Holder v. United States, 539 U.S. 916, 123 S.Ct. 2273, 156 L.Ed.2d 132 (2003); United States v. Edelin, 134 F.Supp.2d 45, 49 (D.D.C.2001) (same); United States v. Lee, 89 F.Supp.2d 1017, 1019 (E.D.Ark.2000) (same), rev'd on other grounds, 274 F.3d 485 (8th Cir.2001); United States v. Hall, 152 F.3d 381, 398 (5th Cir.1998) (same) (affirming district court order), cert. denied, 526 U.S. 1117, 119 S.Ct. 1767, 143 L.Ed.2d 797 (1999), abrogated on other grounds,United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); United States v. Beckford, 962 F.Supp. 748, 762-3 (E.D.Va.1997) (same); United States v. Haworth, 942 F.Supp. 1406, 1409 (D.N.M.1996) (same); United States v. Vest, 905 F.Supp. 651, 654 (W.D.Mo.1995) (same). This granting of motions for pretrial examination appears to be based on unwarranted comparisons to non-discretionary examination under the Rules pursuant to an insanity defense.