(a) Except as provided by subsection (b) of this section, the provisions of § 5-2-301 et seq. shall apply to the following:

(1) In any juvenile delinquency proceeding in which the juvenile's fitness to proceed is put in issue by any party or the court; and

(2) In juvenile delinquency proceedings in which extended juvenile jurisdiction designation has been requested by any party and a party intends to raise lack of capacity as an affirmative defense.

(b) (1) (A) For a juvenile under thirteen (13) years of age at the time of the alleged offense and who is charged with capital murder, § 5-10-101, or murder in the first degree, § 5-10-102, there shall be a presumption that:

(i) The juvenile is unfit to proceed; and

(ii) He or she lacked capacity to:

(a) Possess the necessary mental state required for the offense charged;

(b) Conform his or her conduct to the requirements of law; and

(c) Appreciate the criminality of his or her conduct.

(B) The prosecution must overcome these presumptions by a preponderance of the evidence.

(2)

(A) For a juvenile under thirteen (13) years of age and who is charged with capital murder, § 5-10-101, or murder in the first degree, § 5-10-102, the court shall order an evaluation to be performed in accordance with § 5-2-327 or § 5-2-328, or both.

(B) Upon an order for evaluation, all proceedings shall be suspended and the period of delay until the juvenile is determined fit to proceed shall constitute an excluded period for the speedy trial provisions of Rule 28 of the Arkansas Rules of Criminal Procedure.

(3) The court shall require the prosecuting attorney to provide to the examiner any information relevant to the evaluation, including, but not limited to:

(A) The names and addresses of all attorneys involved;

(B) Information about the alleged offense; and

(C) Any information about the juvenile's background that the prosecutor deems relevant.

(4) The court may require the attorney for the juvenile to provide any available information relevant to the evaluation, including, but not limited to:

(A) Psychiatric records;

(B) School records; and

(C) Medical records.

(5) All information required under subdivisions (b)(3) and (4) of this section must be provided to the examiner within ten (10) days after the court order for the evaluation and, when possible, this information shall be received prior to the juvenile's admission to the facility providing the inpatient evaluation.

(6) In assessing the juvenile's competency, the examiner shall:

(A)

(i) Obtain and review all records pertaining to the juvenile.

(ii) This should include the information in subdivisions (b)(3) and (4) of this section and any other relevant records;

(B) Consider the social, developmental, and legal history of the juvenile, as related by the juvenile and a parent or guardian, and any other relevant source;

(C) Consider the current alleged offense;

(D) Conduct a competence abilities interview of the juvenile;

(E) Conduct an age-appropriate mental status exam using tests designed for juveniles;

(F) Conduct an age-appropriate psychological evaluation using tests designed for juveniles; and

(G) Consider any other relevant test or information.

(7)

(A) Evaluations shall be filed with the court and distributed to the parties within ninety (90) days from the date of the order requesting the evaluation.

(B) All such reports shall be filed under seal with the court and shall not be subject to the Freedom of Information Act of 1967, § 25-19-101 et seq.

(C) The report shall include, but not be limited to, the following:

(i) Identification of the juvenile and the charges;

(ii) Listing of assessment methods used;

(iii) Description of what the juvenile was told about the purpose of the evaluation;

(iv) Social, clinical, and developmental history and the sources from which this information was obtained;

(v) Mental status data, including any psychological testing conducted and results;

(vi) Comprehensive intelligence testing;

(vii) Competence data assessing the competence-to-stand-trial abilities;

(viii) Interpretation of the data, including clinical or developmental explanations for any serious deficits in competence abilities;

(ix)

(a) An opinion as to the juvenile's fitness to proceed.

(b) In reaching this opinion, the examiner shall consider and make written findings regarding the following:

(1) Do the juvenile's capabilities entail:

(A) An ability to understand and appreciate the charges and their seriousness;

(B) An ability to understand and realistically appraise the likely outcomes;

(C) A reliable episodic memory so that he or she can accurately and reliably relate a sequence of events;

(D) An ability to extend thinking into the future;

(E) An ability to consider the impact of his or her actions on others;

(F) Verbal articulation abilities or the ability to express himself or herself in a reasonable and coherent manner; and

(G) Logical decision-making abilities, particularly multifactored problem solving or the ability to take several factors into consideration in making a decision; and

(2) Developmentally, does the juvenile have:

(A) An ability to understand the charges;

(B) An ability to understand the roles of participants in the trial process, i.e., judge, defense attorney, prosecutor, witnesses, and jury and understand the adversarial nature of the process;

(C) An ability to adequately trust and work collaboratively with his or her attorney and provide a reliable recounting of events;

(D) An ability to reason about available options by weighing their consequences, including, but not limited to, weighing pleas, waivers, and strategies;

(E) An ability to disclose to an attorney a reasonably coherent description of facts pertaining to the charges, as perceived by the juvenile; and

(F) An ability to articulate his or her motives; and

(x) (a) An opinion as to whether at the time the juvenile engaged in the conduct charged, as a result of immaturity or mental disease or defect, the juvenile lacked capacity to:

(1) Possess the necessary mental state required for the offense charged;

(2) Conform his or her conduct to the requirements of the law; and

(3) Appreciate the criminality of his or her conduct.

(b) In reaching this opinion, the examiner shall consider and make written findings with respect to the following questions regarding the juvenile's abilities and capacities:

(1) Was the juvenile able to form the necessary intent;

(2) Did the juvenile know which actions were wrong;

(3) Did the juvenile have reasonably accurate expectations of the consequences of his or her actions;

(4) Was the juvenile able to act of his or her own volition;

(5) Did the juvenile have the capacity to behave intentionally;

(6) Did the juvenile have the capacity to engage in logical decision-making;

(7) Did the juvenile have the capacity to foresee the consequences of his or her actions; and

(8) Did the juvenile have the capacity to exert control over his or her impulses and to resist peer pressure.

(8)

(A) Within thirty (30) days of the receipt of the evaluation report, the court shall first determine whether the juvenile is fit to proceed.

(B)

(i) The parties may stipulate to the findings and conclusions of the evaluation report and the court may enter an order with respect to fitness based thereon.

(ii) (a) Otherwise, a hearing shall be conducted and in order for the court to find a juvenile fit to proceed, the prosecution shall be required to prove by a preponderance of the evidence the following:

(1) The juvenile understands the charges and potential consequences;

(2) The juvenile understands the trial process and proceedings against him or her; and

(3) The juvenile has the capacity to effectively participate with and assist his or her attorney in a defense to prosecution.

(b) The court shall issue written findings as to whether the prosecution has met its burden with respect to such issues and whether the juvenile is fit or unfit to proceed.

(9)

(A) If the juvenile is found unfit to proceed, the court shall commit the juvenile to the custody of the Department of Human Services or a residential treatment facility for a period not to exceed nine (9) months.

(B) During this period, the facility responsible for the juvenile shall be required to report to the court and the parties at least every thirty (30) days on the juvenile's progress.

(C) If fitness to proceed is not restored within nine (9) months, the court shall convert the delinquency petition to a family in need of services petition.

(10) (A) If a juvenile is found fit to proceed, the court shall next conduct a hearing wherein the state shall be required to prove by a preponderance of the evidence that at the time the juvenile engaged in the conduct charged he or she had the capacity to:

(i) Possess the necessary mental state required for the offense charged;

(ii) Conform his or her conduct to the requirements of the law; and

(iii) Appreciate the criminality of his or her conduct.

(B)

(i) In making the determination, the court shall consider the written findings of the examiner and any other relevant evidence and shall issue a written order with respect to the hearing.

(ii) If the court finds that the state did not meet its burden with regard to the capacity of the charged offense, but the juvenile had the capacity for a lesser included offense, the court shall convert the extended juvenile jurisdiction petition to a delinquency petition.

(iii) If the court finds the state did not meet its burden with regard to the capacity of the charged offense or a lesser included offense, the court shall convert the delinquency petition into a family in need of services petition.

(iv)

(a) If the court finds that the state met its burden with regard to the capacity, the court shall schedule a designation hearing as described in § 9-27-503.

(b) Such a finding by the court does not prevent the juvenile from raising the affirmative defense of lack of capacity at a subsequent adjudication hearing.