Forensic Psychological Evaluation Law Rewritten

Developments in Mental Health Law, April-June 1982 | Go to article overview

Forensic Psychological Evaluation Law Rewritten


Among the bills involving mental health law passed by the General Assembly in the 1982 session, the most significant is Senate Bill 417 (1982 Va. Laws ch. 653). This new statute governs the procedures to be followed in obtaining psychological evaluations of and treatment for criminal defendants. Effective July 1, 1982, it revises substantially provisions currently found in Sections 19.2-169 'through 19.2-176 of the Virginia Code. The statute was drafted by a twelve-member Task Force appointed by former Secretary of Human Resources Jean Harris in May 1981. Although the General Assembly made several modifications in the draft submitted by the Task Force, only a few were significant (see footnotes to commentary, page 16).

The primary objectives of the new statute are (1) to simplify the statutory language; (2) to redefine the prerequisite qualifications of mental health professionals who may perform evaluations for the courts; (3) to require that, when feasible, evaluation of fitness to stand trial or insanity at the time of the offense be conducted in the community rather than in a distant state hospital; (4) to insure that defendants who need emergency psychiatric hospital treatment prior to trial obtain such treatment; and (5) to accord defendants who are evaluated and treated under these provisions certain procedural protections not provided in the present statute.

The full text of the statute begins on page 16. In addition, a commentary prepared by Christopher Slobogin, a member of the Task Force, is provided. Although this commentary is not the official view of either the General Assembly or the Task Force, it may assist the reader in understanding the purpose and logic behind the various provisions of the statute.

Unofficial Commentary

Section 19.2-168.1

This section is added to the present Section 19.2-168, which provides that the defendant must notify the prosecution about his intent to raise a psychiatric defense ten days prior to trial. Once the defendant formally raises a psychiatric defense under Section 19.2-168, the prosecution should be entitled to obtain its own evaluation. See Gibson v. Zahradnick, 581 F.2d 75 (4th Cir. 1978); United States v. Albright, 388 F.2d 719 (4th Cir. 1968). The new statute provides that if the defendant refuses to cooperate with the prosecution's expert during this evaluation, the court may prohibit presentation of all clinical testimony at trial. See Estelle v. Smith, 451 U.S. 454, 465-66 (1981). The question of what constitutes non-cooperation is left to the court, but its decision will usually be based upon the clinician's description of the defendant's actions during the evaluation.

If and when the state's clinician reaches a conclusion about mental state at the time of the offense, the defense as well as the state should receive the report in time to permit adequate preparation for trial.

Section 19.2-169

(A) It is well settled that if there is reason to believe the defendant is incompetent to stand trial at any time up to and including the trial itself, constitutional due process requires that the court take appropriate steps to determine whether the defendant is competent Drope v. Missouri, 420 U.S. 162, 181 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966). Given these due process considerations, any party to the criminal action, whether it be the court, the attorney for the commonwealth, or the attorney for the defendant, may raise the issue. However, since a competency evaluation may result in a deprivation of liberty, the court or the commonwealth should not be able to raise the issue until the defendant has obtained an attorney who can assist the defendant during the competency determination. This subsection recognizes all of these considerations by permitting the issue to be raised at any time by any party after counsel for the defendant has been obtained and before the end of trial.

This subsection also sets out the standard for ordering a competency evaluation (probable cause to believe the defendant is unable to understand the proceedings against him or to assist in his own defense), which is based loosely on the standard announced by the Supreme Court in Dusky v. …

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