19.2-264.3:1 - Expert assistance when defendant's mental condition relevant to capital sentencing
§ 19.2-264.3:1. Expert assistance when defendant's mental condition relevantto capital sentencing.
A. Upon (i) motion of the attorney for a defendant charged with or convictedof capital murder and (ii) a finding by the court that the defendant isfinancially unable to pay for expert assistance, the court shall appoint oneor more qualified mental health experts to evaluate the defendant and toassist the defense in the preparation and presentation of informationconcerning the defendant's history, character, or mental condition, including(i) whether the defendant acted under extreme mental or emotional disturbanceat the time of the offense; (ii) whether the capacity of the defendant toappreciate the criminality of his conduct or to conform his conduct to therequirements of the law was significantly impaired at the time of theoffense; and (iii) whether there are any other factors in mitigation relatingto the history or character of the defendant or the defendant's mentalcondition at the time of the offense. The mental health expert appointedpursuant to this section shall be (i) a psychiatrist, a clinicalpsychologist, or an individual with a doctorate degree in clinical psychologywho has successfully completed forensic evaluation training as approved bythe Commissioner of Behavioral Health and Developmental Services and (ii)qualified by specialized training and experience to perform forensicevaluations. The defendant shall not be entitled to a mental health expert ofthe defendant's own choosing or to funds to employ such expert.
B. Evaluations performed pursuant to subsection A may be combined withevaluations performed pursuant to § 19.2-169.5 and shall be governed bysubsections B and C of § 19.2-169.5.
C. The expert appointed pursuant to subsection A shall submit to the attorneyfor the defendant a report concerning the history and character of thedefendant and the defendant's mental condition at the time of the offense.The report shall include the expert's opinion as to (i) whether the defendantacted under extreme mental or emotional disturbance at the time of theoffense, (ii) whether the capacity of the defendant to appreciate thecriminality of his conduct or to conform his conduct to the requirements ofthe law was significantly impaired, and (iii) whether there are any otherfactors in mitigation relating to the history or character of the defendantor the defendant's mental condition at the time of the offense.
D. The report described in subsection C shall be sent solely to the attorneyfor the defendant and shall be protected by the attorney-client privilege.However, the Commonwealth shall be given the report and the results of anyother evaluation of the defendant's mental condition conducted relative tothe sentencing proceeding and copies of psychiatric, psychological, medicalor other records obtained during the course of such evaluation, after theattorney for the defendant gives notice of an intent to present psychiatricor psychological evidence in mitigation pursuant to subsection E.
E. In any case in which a defendant charged with capital murder intends, inthe event of conviction, to present testimony of an expert witness to supporta claim in mitigation relating to the defendant's history, character ormental condition, he or his attorney shall give notice in writing to theattorney for the Commonwealth, at least 60 days before trial, of hisintention to present such testimony. In the event that such notice is notgiven and the defendant tenders testimony by an expert witness at thesentencing phase of the trial, then the court may, in its discretion, uponobjection of the Commonwealth, either allow the Commonwealth a continuanceor, under appropriate circumstances, bar the defendant from presenting suchevidence.
F. 1. If the attorney for the defendant gives notice pursuant to subsection Eand the Commonwealth thereafter seeks an evaluation concerning the existenceor absence of mitigating circumstances relating to the defendant's mentalcondition at the time of the offense, the court shall appoint one or morequalified experts to perform such an evaluation. The court shall order thedefendant to submit to such an evaluation, and advise the defendant on therecord in court that a refusal to cooperate with the Commonwealth's expertcould result in exclusion of the defendant's expert evidence. Thequalification of the experts shall be governed by subsection A. The locationof the evaluation shall be governed by subsection B of § 19.2-169.5. Theattorney for the Commonwealth shall be responsible for providing the expertsthe information specified in subsection C of § 19.2-169.5. After performingtheir evaluation, the experts shall report their findings and opinions andprovide copies of psychiatric, psychological, medical or other recordsobtained during the course of the evaluation to the attorneys for theCommonwealth and the defense.
2. If the court finds, after hearing evidence presented by the parties, outof the presence of the jury, that the defendant has refused to cooperate withan evaluation requested by the Commonwealth, the court may admit evidence ofsuch refusal or, in the discretion of the court, bar the defendant frompresenting his expert evidence.
G. [Repealed.]
(1986, c. 535; 1987, c. 439; 1996, cc. 937, 980; 2003, cc. 1031, 1040; 2009,cc. 813, 840; 2010, c. 559.)