Magazine article Developments in Mental Health Law

Forensic Evaluation Law

Magazine article Developments in Mental Health Law

Forensic Evaluation Law

Article excerpt

The full text of the revised forensic evaluation law, 1982 Va. Laws ch. 653, is reprinted below. For commentary, see article beginning on page nine.

Approved April 21, 1982

Be it enacted by the General Assembly of Virginia:

1. That [section][section] 19.2-175 and 19.2-176 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 19.2-168.1 and 19.2-169.1 through 19.2-169.7 as follows:

[section] 19.2-168.1. Evaluation on motion of the Commonwealth after notice.--A. If the attorney for the defendant gives notice pursuant to [section] 192-168, and the Commonwealth thereafter seeks an evaluation of the defendant's mental state at the. time of the offense, the court shall order such evaluation to be performed by one or more mental health professionals, one of whom is either a psychiatrist or a clinical psychologist with a doctorate degree. Evaluators who perform the evaluation shall report their opinion to the Commonwealth and the defense.

B. If the court finds, after heating evidence presented by the parties, that the defendant has refused to cooperate with an evaluation requested by the Commonwealth, it may bar the defendant from presenting expert psychiatric or psychological evidence at trial on the issue of his mental state at the time of the offense.

[section] 192-169.1. Raising question of competency to stand trial or plead; evaluation and determination of competency.--A. Raising competency issue; appointment of evaluators.--If, at anytime after the attorney for the defendant has been retained or appointed and before the end of the trial, the court finds, upon hearing evidence or representations of counsel, that there is probable cause to believe that the defendant lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who is qualified by training and experience to perform such evaluations.

B. Location of evaluation.--The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless the court specifically finds that outpatient evaluation services are unavailable or unless the results of outpatient evaluation indicate that hospitalization of the defendant for evaluation on competency is necessary. If either finding is made, the court, under authority of this subsection, may order the defendant sent to a hospital designated by the Commissioner of Mental Health and Mental Retardation as appropriate for evaluations of persons under criminal charge. The defendant shall be hospitalized for such time as the director of the hospital deems necessary to perform an adequate evaluation of the defendant's competency, but not to exceed thirty days from the date of admission to the hospital.

C. Provision of information to evaluators.--The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant, and the judge ordering the evaluation; (iii) information about the alleged crime; and (iv) a summary of the reasons for the evaluation request. The court shall require the attorney for the defendant to provide any available psychiatric records and other information that is deemed relevant.

D. The compentency report.--Upon completion of the evaluation, the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant's capacity to understand the proceedings against him; (ii) his ability to assist his attorney; and (iii) his need for treatment in the event he is found incompetent. …

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