17-7-128. Intellectual disability claims in criminal cases where death penalty is sought.

As used in this Code section, the term “intellectual disability” shall have the same meaning as set forth in Code Section 17-7-131.#

In criminal cases involving a capital offense for which the death penalty is sought, the accused may file a pretrial notice of intent to raise a claim of intellectual disability. Such notice shall state that the accused has an intellectual disability.#

A pretrial hearing on the issue of whether the defendant has an intellectual disability:#

1. (1)

   May be conducted upon motion of the defendant, at the discretion of the court; or#

2. (2)

   Shall be conducted upon joint consent motion of the defendant and the state to proceed with a pretrial hearing to determine if the accused has an intellectual disability.#

1. (1)

   The defendant shall provide all discovery relating to the claim of intellectual disability, including, but not limited to, reports, names, contact information of any witnesses, and any other information, to the prosecuting attorney no later than 60 days prior to the date of the pretrial hearing, or at such time as the court orders.#

2. (2)

   Within 30 days of the defendant providing discovery, or as otherwise ordered by the court, the prosecuting attorney shall provide all discovery relating to the claim of intellectual disability, including, but not limited to, reports, names, contact information of any witnesses, and any other information, to the defendant.#

3. (3)

   If, prior to the pretrial hearing, a party discovers additional evidence or material previously requested or ordered which is subject to discovery under this subsection, such party shall promptly notify the opposing party of the existence of the additional evidence or material and make the additional evidence or material available to the opposing party.#

Such pretrial determination of intellectual disability shall be made by the court sitting as the finder of fact.#

The defendant shall have the burden of production and persuasion to demonstrate intellectual disability by a preponderance of the evidence, and, if such pretrial determination does not find the defendant to have an intellectual disability, he or she shall not be precluded from raising such issue in further proceedings.#

If the defendant is found to have an intellectual disability, the court shall bar the state from seeking the death penalty. If the court does not find that the defendant has an intellectual disability, the defendant may raise the issue of his or her alleged intellectual disability as set forth in paragraph (2) of subsection (b) or paragraph (2) of subsection (c) of Code Section 17-7-131.#

Either party may seek immediate review of the trial court’s determination regarding intellectual disability, pursuant to subsection (b) of Code Section 5-6-34 or to Code Section 5-7-1.#