Magazine article Developments in Mental Health Law

Forensic Psychological Evaluation Law Rewritten

Magazine article Developments in Mental Health Law

Forensic Psychological Evaluation Law Rewritten

Article excerpt

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. United States, 363, U.S. 162 (1960). As in Dusky, the statute makes no mention of "mental disease or defect" as a predicate for seeking such an evaluation; the competency standard is purely a functional one. Of course, if the defendant is unfit to stand trial, it is likely that his dysfunction will be due to some sort of mental abnormality, which the mental health professional is best qualified to discern and explain.

The forensic evaluator should be acquainted with forensic issues through training and experience. See Group for the Advancement of Psychiatry, 8 Misuse of Psychiatry in the Criminal Courts: Competency to Stand Trial 894 (1974); Report of the Task Force on the Role of Psychology in the Criminal Justice System, 33 Am. Psychologist 1099, 1105 (1978). Following the trend in several states (e.g., Tennessee, New York, Michigan, California), the statute permits doctorate and master's level clinical psychologists, as well as psychiatrists, with such training and experience to conduct competency evaluations. (1)

(B) This paragraph as well as subsection A of Section 19.2-169-5 (on evaluations of mental state at the time of the offense) express a preference for outpatient evaluations in the community. Prolonged inpatient evaluation is unnecessary for all but a small fraction of defendants. Roesch & Golding, Competency to Stand Trial, 188 et seq. (1980); de Grazia, E. "Diversion from the Criminal Process: The 'Mental Health' Experiment," 6 Conn. Law. Rev. 432, 436 n. 14 (1974); Stone, A.A., Mental Health and the Law: A System in Transition, at 209-10 (1975). Moreover, unnecessary hospitalization violates the defendant's right to be evaluated and treated in the least restrictive environment, as well as his right to bail. See Janis, N.R., "Incompetency Commitment: The Need for Procedural Safeguards and a Proposed Statutory Scheme," 23 Catholic University Law Rev. 720, 738 (1974); Steinberg, M.I. "Summary. Commitment of Defendants Incompetent to Stand Trial: A Violation of Constitutional Safeguards" 22 St. Louis University Law Journ. 1, 11-20 (1978). Finally, outpatient evaluations should save the state money both in hospitalization and transportation costs. See Roesch & Golding, supra, at 188; Annual Report of the Forensic Evaluation Training Center, August 1, 1981, Appendix 6.

If inpatient evaluation is necessary, it should take no longer than thirty days. See above references. In fact, most competency evaluations, even in complicated cases, should last no longer than a day.

(C) Adequate evaluations cannot be performed without sufficient information. Sadoff, R., Forensic Psychiatry, at 19 (1975); Pollack, "Psychiatric Consultation for the Court," 1 Bull. Am. Acad. Psych. & L. 267, 274 (1973). Without Items 1, 2, and 3 as listed in the statute, the evaluators will be unable to assess the defendant's knowledge of the legal system, the charges against him, and his ability to assist his attorney in representing him on the alleged charges. Item 4 gives the evaluator information on what triggered the evaluation. This can be obtained by requiring the party moving for the evaluation to submit a written motion explaining the reasons for the request and by then forwarding that motion to the evaluators.

(D) This subsection establishes rules governing the competency report and lays out the specific areas the evaluators are to address. Of special note is the requirement that the evaluators reach an opinion on the treatment (i.e., restorability) of the defendant thought to be incompetent.

The final sentence in this subsection is designed to implement the defendant's fifth amendment privilege against self-incrimination. A competency report can address the defendant's ability to assist his attorney, including his ability to remember the alleged offense, without stating explicitly what he said to the evaluators about the ,offense. On the other hand, inclusion of such disclosures might give the prosecution investigative clues which could lead to the defendant's conviction. See Blaisdell v. Comm. 364 N.E. 2d 171 (Mass. 1977); Berry, F.D., "Seli Incrimination and the Compulsory Mental Examination: A Proposal," 15 Arizona Law Rev. 919 (1973). This provision should also encourage communication between the evaluators and the defendant.

(E) This subsection requires that the court's conclusion about competency be made promptly to expedite the process and protect the defendant's speedy trial right. A hearing on the competency issue will usually be unnecessary. However, if the commonwealth or the defense object to the report or if it appears that the defendant may be hospitalized based on a finding of incompetency (and thus deprived of liberty), a hearing is required and should accord the defendant the due process rights outlined in this subsection. State ex rel. Matalik v. Schubert, 57 Wis. 2d 316,204 N.W. 2d 13 (1973); see also Pate v. Robinson, supra, at 384. The burden of proof is placed on the party asserting incompetency because competency will often result in a deprivation of liberty. See Mental Health Law Project, Legal Issues in State Mental Health Care: Proposals for Change--Incompetency to Stand Trial on Criminal Charges, 2 Mental Disability Law Reporter, 617, 624 (1978).

The second paragraph is designed to give the judge guidance on two relatively common, and often troublesome, issues. That amnesia per se is not a bar to a competency finding is well established. Comm. v. Price, 421 Pa. 396, 218 A. 2d 758 (1966); United States v. Sermon, 228 F. Supp. 972 (W.D. Mo., 1964); Hansford v. United States, 124 U.S. App. D.C. 387, 364 F. 2d 920 (1966). The judge, however, should be cognizant of the defendant's disability during trial. See Wilson v. United States, 391 F. 2d 460 (1968). Most courts today also hold that a defendant who is medicated can and should be found competent. United States v. Hayes, 589 F 2d 711 (5th Cir. 1979); People v. Dalfonso, 26 Ill. App. 3d 48 (1975); State v. Hampton, 218 So. 2d. 311 (1969). In fact, psychotropic medication is often the only means of restoring a defendant to the semblance of normality necessary to insure an understanding of the charges and an ability to communicate with others. Winick, B.J. "Psychotropic Medication and Competency to Stand Trial," 1977 American Bar Found. Research Journ. 769 (1977); Group for the Advancement of Psychiatry, supra, 901. Only a few states still do not permit the trial of a medicated defendant. Winick, supra, at 774-76. Unresolved by this statute is whether the state may administer medication to the incompetent defendant over his objection.

Section 19.2-169.2

If the court finds the defendant incompetent, it may order the defendant to undergo treatment to restore his competency under the authority of this subsection. Again, least restrictive alternative considerations should be paramount in the judge's decision regarding treatment [see references in commentary to Section 19.2-169.1 (B)]. Subsection B requires the director of the facility that is treating the defendant to notify the court as soon as the defendant is believed to be restored so that charges against the defendant can be disposed of as quickly as possible. The court need not hold a hearing to determine whether the defendant is in fact restored unless one is requested by one of the parties, pursuant to section 19.2-169.1 (E).

Section 19.2-169.3

This section's treatment of the nonrestorable incompetent defendant is consonant with Jackson v. Indiana, 406 U.S. 715 (1972), which forbids the detention of a defendant found incompetent "beyond a reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future." Id. at 731-39. Several commentators have suggested that a reasonable period of time in this context be defined as a maximum of six months. Group for the Advancement of Psychiatry, supra, at 907; Stone supra, at 212; Burr, R.A. and Morris, N. "A Proposal for the Abolition of the Incompetency Plea," 40 Univ. of Chicago Law Rev. 66, 90-2 (1972). However, the General Assembly preferred to keep the hospitalization period open-ended, provided the judge continues to find the defendant foreseeably restorable. (2)

Also in line with Jackson, this section indicates that the nonrestorable defendant must either be released outright or civilly confined when the court finds that the defendant is not restorable. Since Virginia's civil commitment statute does not provide for the confinement of those who are mentally retarded but not mentally ill, a group which is much more likely to be nonrestorable, this subsection also permits the judge to certify a defendant to an institution for the mentally retarded under Section 37-65.1. However, since Section 37-65.1 permits institutionalization only if the defendant or his guardian and the institution's director assent to it, the alternative provided by Section 19.2-169.3 may not always be a feasible one.

Subsection A deals with the defendant who is so mentally deficient that there is no point in trying to restore him, even over a six month period. Subsection B outlines the procedure to be followed in those cases when a longer period of time is necessary to restore the defendant to competency. Subsection C provides for the dismissal of charges against the unrestorable defendant, on the ground that a defendant who is truly incompetent should not have unproven criminal charges permanently hanging over his head. See Ohio Rev. Code Ann. Section 2845.38. Of course, once charges are dismissed, the state no longer has authority to hospitalize the defendant for purposes of restoring him to competency.

Section 19.2-169.4

This subsection rephrases in understandable language what the current Section 19.2-169 provides. See also Model Penal Code Section 4.04 (3); California Penal Code Section 1368.1. It is up to the court to decide what types of motions are susceptible to determination without the personal participation of the defendant.

Section 19.2-169.5

(A) This section sets out the requirements for an evaluation of mental state at the time of the offense, regardless of who requests the evaluation. It provides that Ph.D. clinical psychologists, as well as psychiatrists, are qualified to perform such evaluations, a position endorsed by several state courts, e.g. Simmons v. Mullen, 231 Pa. Super. 199, 331 A. 2d 892 (1974); People v. Lyles, 526 P. 2d 1332 (Colo. Sup. Ct. 1974); Hogan v. State, 496 S.W. 2d 594 (Tex. Crim. App. 1973), cert den. 414 U.S. 862 (1973); State v. Robertson, 278 A. 2d 842 (R.I. Sup. Ct. 1971), as well as most federal courts. See, e.g., United States v. Green, 373 F. Supp. 149 (E.D. Pa. 1974), aff'd per curiam, 505 F. 2d 731 (3d Cir. 1974); Jenkins v. United States, 113 U.S. App. D.C. 300, 307 F. 2d 637 (D.C. Cir. 1962). In Rollins v. Commonwealth, 207 Va. 575, 151 S.E. 2d 622 (1966), the Virginia Supreme Court held that a master's level clinical psychologist who had completed all the requirements for a Ph.D. and who had practiced forensics for eight years was qualified to express his opinion as to the defendant's mental condition. To date, however, case law has not supported the expert qualification of a master's level psychologist who does not have such educational or experiential attainments; under the statute, such an individual would only be qualified to perform competency evaluations, although he could certainly assist in any type of evaluation.

(B) For reasons discussed in the commentary to Section 19.2-169.1, this section also calls for outpatient evaluations whenever possible. While a mental state at the time of the offense evaluation is more complicated than a competency assessment, it too can be conducted in a short period of time when adequate information is provided. See Sadoff, supra. Again, if the inpatient evaluation is necessary, it is limited to thirty days.

(C) The informational requirements listed in this subsection are similar to those described in the competency statute, with the addition of a provision requiring the production of various records which are relevant to a mental state at the time of the offense evaluation. See Sadoff, supra; Pollack, supra. The primary responsibility for providing this information is placed on the referring party, although the court may require other sources, including the opposing party, municipal and state agencies, and out of state facilities to provide relevant data as well.

(D) Based on Virginia law, see e.g., Dejamette v. Comm., 75 Va. 867 (1881); Thompson v. Comm., 193 Va. 704, 70 S.E. 2d 284 (1952); Snider v. Smith, t87 F. Supp. 299 (E.D. Va. 1960), an evaluation of the defendant's "sanity" (3) at the time of the offense should address whether (1) the defendant was suffering from a significant mental disease or defect at the time of the offense (2) that affected his actions at the time of the offense so as to (3) cause significant cognitive or volitional impairment. The evaluators' opinions on these issues should be included in the summary report, which usually will be only one or two paragraphs long. Data supporting these opinions, including offense-related information from the defendant, should be confined to the full report. The reasoning behind this procedure is explained below in the commentary to subsection (E).

(E) The defendant has a sixth amendment right to explore the possibility of a psychological defense. Wood v. Zahradnick, 578 F. 2d 980 (4th Cir. 1978). He should also have a right, under the fifth and sixth amendments, to investigate that possibility without fear that what he says will go to the prosecution if he does not raise a defense; otherwise he might decide not to seek an evaluation for fear of revealing incriminating material which could form the basis for investigative leads, even if it cannot be used directly on the issue of guilt. See Berry, supra. Recognizing these principles, several states extend the attorney-client privilege to the results of an exploratory evaluation until such time as the defendant raises a defense. See, e.g. Florida Rules of Criminal Procedure 3.216(a). However, no rights of the defendant are jeopardized by sending the prosecution a summary of the evaluation which does not contain self-incriminating information. Nor are the defendant's rights violated by allowing the prosecution access to the full report once a defense has been raised. C.f. Estelle v. Smith, 451 U.S. 454 (1981). See also, Section 19.2-168.1 allowing the prosecution to obtain its own evaluation once notice of a defense is given.

Section 19.2-169.6

(A) Frequently, defendants who have been confined need emergency hospital treatment. Such treatment may be necessary regardless of whether the defendant is competent or incompetent to stand trial. Under the previous statute, judges had no statutory authority to hospitalize such defendants and thus often hospitalized defendants summarily with no due process. This subsection provides such authority as well as the necessary procedural protections.

First, given the emergency nature of the proceeding, the judge with criminal jurisdiction over the defendant may authorize another judge (e.g., a special justice) to conduct the hospitalization hearing. Second, the presiding judge must find that the defendant is properly detained (i.e., ineligible for bond or release on personal recognizance) before he can consider hospitalizing the defendant. Otherwise, the appropriate procedure for hospitalizing the defendant should be civil commitment under Section 37.1-67.1 et seq. Third, the judge must obtain an evaluation by a qualified mental health professional on the second and third issues set out in the statute. The professional need not be a psychiatrist since dangerousness and need for hospital treatment (as opposed to the administration of it) are issues which other mental health professionals can address. Fourth, the judge must find all three criteria present by clear and convincing evidence. Addington v. Texas 441 U.S. 418 (1979). Fifth, the court must notify the defense attorney about the professional's findings and allow him to challenge them. All of these procedures are designed to balance the defendant's right to avoid unnecessary hospitalization, see Vitek v. Jones, 100 S. Ct. 1254 (1980); Jackson v. Indiana, 406 U.S. 715 (1972), with society's need to treat the mentally ill defendant under secure conditions. The Task Force rejected the idea of utilizing the civil commitment statute in this situation because its "voluntary" option and its use of least restrictive alternative language made it inappropriate for the defendant who has been denied bond.

Finally, as provided in this subsection, the court should indicate to the admitting hospital whether evaluation, as well as treatment, is necessary, and on what issues.

(B) If a defendant is admitted under subsection (A), he can be hospitalized for up to thirty days, at which time the committing court must decide which of the four indicated dispositions of the defendant's case is appropriate.

(C) Further sixty day hospitalizations may occur only if the procedures in this subsection are followed. Such a proceeding may be held at the hospital if the original court authorizes it. However, the statute makes clear that hospitalization under this subsection is not to be used as a method of delaying trial of the competent defendant

Section 19.2-169.7

This provision incorporates the holding of the Fourth Circuit in Gibson v. Zahradnick, 581 F.2d 75 (1978), a holding followed by several other courts and the Model Penal Code. Model Penal Code Section 4.09 (Proposed Official Draft, 1962); Colo. Rev. Star. Section 16-8-107 (1973); Ill. Ann. Stat., ch. 38, Section 115-b (Smith-Hurd 1973); Mass. Gen. Laws Ann., ch. 233, Section 23B (West Supp. 1979). It goes beyond Gibson, however, in providing that the only issue upon which the defendant's evaluation statements can be used as evidence is mental state at the time of the offense, after that issue has been properly raised by the defendant himself. Thus, such information cannot be used to impeach the defendant on other issues, nor can it be used as an investigative tool by the state. Again, this provision is necessary to protect the defendant's fifth and sixth amendment rights, insure open communication between the evaluator and the defendant, and relieve the professional of ethical qualms concerning the use of the evaluation results.

Section 19.2-175

The amendment to this section requires the court to abide by regulations promulgated by the Department of Mental Health and Mental Retardation fixing compensation, on a flat fee basis, for psychological evaluations. One such regulation, which will go into effect shortly, is found in footnote 4.

Section 19.2-176

The redrafting of this section was necessary in light of its reference to the old Section 19.2-169. It deals with the rare circumstance in which a convicted defendant needs emergency treatment prior to being sentenced.

Forensic Training

Under a contract with the Department of Mental Health and Mental Retardation, the Forensic Evaluation Training and Research Center is offering training designed to acquaint mental health professionals with the Virginia criminal justice system and the types of evaluations requested by the Criminal courts. Successful completion of the training and a nationally validated forensic examination are necessary in order to obtain a certificate from the Center indicating that the professional has passed the course.

The Training

The training lasts seven days. The first six days of training take place at the Center's facilities in Charlottesville, Virginia. The final day takes place at Central State Hospital in petersburg. The following topics are covered: (1) Competency to Stand Trial, (2) Competency to Plead, (3) Mental State at the Time of the Offense Doctrines. (4)Juvenile Delinquency Jurisdiction, (5) Sentencing, (6) Report Writing, and (7) Expert Testimony. In addition, :trainees participate in at least two supervised evaluations.

Prerequisites and Fees

Under direction from the Department. the Centers primary function is to train professionals affiliated with Community Mental Health Centers. Each Center is asked to send to the training at least two professionals, at least one of whom is a psychiatrist or Ph.D. clinical psychologist (given the courts' expert witness requirements). Professionals from the CHMC must pay for their travel expenses and a minimal fee to cover costs of the training materials. Private clinicians (i.e., those not affiliated, with a CMHC) can participate in the training for a tuition fee.


The next training programs will take place on the foil owing days:

Program VIII: July 19, 20, 21: 26, 27, 28

Program IX: Sept. 13, 14 15: 20, 21, 22

Program X: Nov. 8, 9, 10; 15, 16, 17.

Contact Christopher Slobogin or Larry Fitch at (804) 924-5435, Forensic Evaluation Training and Research Center, Box 100-Blue Ridge Hospital, Charlottesville. Virginia 22901, for more information.


(1.) The original draft to the statute would have permitted master's level clinical social workers to perform competency evaluations as well, but the General Assembly preferred to restrict such evaluations to psychiatrists and psychologists.

(2.) The original draft provided that the state could confine an incompetent individual [or six months, with a six month extension, at which time it would have to release him or hospitalize him under the civil commitment or certification provisions.

(3.) The original draft used the term "mental state" instead of "sanity" on the theory that the mental health professional's evaluation should encompass a complete investigation of the defendant's psychological functioning at the time of the offense. The General Assembly preferred the word "sanity," apparently as a means of emphasizing that under current Virginia law the primary legal issue to be resolved by such evaluations is whether the defendant was insane at the time of the offense.

(4.) The following is a portion of a regulation recently promulgated by the Department, the Supreme Court, and the Attorney General's office.

Reimbursement for Evaluation of Indigent Defendants

Section 19.2-175 of the Virginia Code authorizes payment of up to $200 per psychological evaluation and report, "in accordance with the relevant regulations promulgated by the Department of Mental Health and Mental Retardation." This memorandum establishes the fee schedule for psychological evaluations of indigent criminal defendants that are performed by CMHCs.

Upon submission of a written evaluation report on an indigent defendant to the court or to the initiating party, the CMHC shall be entitled to reimbursment according to the following schedule:

Competency Evaluation                             $100

Competency Evaluation Plus Preliminary
 or "Screening" Evaluation of Mental
 State at the Time of the Offense                 $150

Comprehensive Evaluation of Mental
 State at the Time of the Offense                 $200

Pre-Sentence Evaluation:

a. Only                                           $200

b. If Competency or Mental State
   at the Time of the Offense
   Evaluation Already Performed                   $100

Reimbursement of evaluators not affiliated with a CMHC shall be governed by the provisions of Section 19.2-175 and the court's customary fee schedule.

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