Virginia's New Forensic Evaluation Laws
Fitch, W. Lawrence, Developments in Mental Health Law
Among the bills involving mental health law passed by the Virginia General Assembly in the 1986 session, the most notable for forensic examiners is HB 641. This bill, sponsored by Dei. Samuel Glasscock (D-Suffolk), significantly alters procedures for the assignment of mental health experts in criminal cases.
The new law, which takes effect July 1, is designed to implement the United States Supreme Court's decision last year in Ake v. Oklahoma,--U.S.--, 105 S.Ct. 1087 (1985). As discussed in more detail in a previous issue of Developments in Mental Health Law (Vol. 5, Nos. 1-2), the Ake decision recognized the right of a criminal defendent to independent "psychiatric assistance" (1) when the defendent's "sanity" at the time of the offense is likely to be a significant factor at trial and (2) when the defendent's mental condition is relevant to sentencing in a capital case.
The primary objectives of the changes in Virginia law are (1) to establish a procedure for the provision of expert assistance at sentencing in capital cases, (2) to assure the defendent access to consultative as well as evaluative expert assistance, (3) to promote the independence of the expert assigned for the defense, (4) to recognize the qualification of psychologists to provide this assistance, and (5) to allow for reasonable compensation of court-appointed experts. The following is an unofficial section by section commentary. The amended law precedes each comment.
[section] 19.2-169.5. Evaluation of sanity at the time of the offense; disclosure of evaluation results.--A. Raising issue of sanity at the time of offense; appointment of evaluators.--If, at any time before trial, the court finds, upon hearing evidence or representations of counsel for the defendant, that there is probable cause to Believe that the defendant's sanity will be a significant factor in his defense and that the defendant is financially unable to pay for expert assistance, the court shall appoint one or more qualified mental health experts to evaluate the defendant's sanity at the time of the offense and, where appropriate, to assist in the development of an insanity defense. Such mental health expert shall be a psychiatrist or a clinical psychologist with a doctorate degree and shall be qualified by training and experience to perform such evaluations. The defendant shall not be entitled to a mental health expert of his own choosing or to funds to employ such expert.
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 services are unavailable, or unless the results of the outpatient evaluation indicate that hospitalization of the defendant for further evaluation of his sanity at the time of the offense is necessary, if either finding is made, the court, under authority of this subsection, may order that the defendant be sent to a hospital designated by the Commissioner as appropriate for evaluation of the defendant 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 sanity at the time of the offense, 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 party making the motion for the evaluation, and such other parties as the court deems appropriate, to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) 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 who appointed the expert; (iii) information pertaining to the alleged crime, including statements by the defendant made to the police and transcripts of preliminary hearings, if any; (iv) a summary of the reasons for the evaluation request; (v) any available psychiatric, psychological, medical or social records that are deemed relevant; and (vi) a copy of the defendant's criminal record, to the extent reasonably available. …