37.2-908 - Trial; right to trial by jury; standard of proof; discovery.
§ 37.2-908. Trial; right to trial by jury; standard of proof; discovery.
A. Within 120 days after the completion of the probable cause hearing heldpursuant to § 37.2-906, the court shall conduct a trial to determine whetherthe respondent is a sexually violent predator. A continuance extending thecase beyond the 120 days may be granted to either the Attorney General or therespondent upon good cause shown or by agreement of the parties.
B. The Attorney General or the respondent shall have the right to a trial byjury. Seven persons from a panel of 13 shall constitute a jury in such cases.If a jury determines that the respondent is a sexually violent predator, aunanimous verdict shall be required. If no demand is made by either party fora trial by jury, the trial shall be before the court.
C. The court or jury shall determine whether, by clear and convincingevidence, the respondent is a sexually violent predator. If the court or jurydoes not find clear and convincing evidence that the respondent is a sexuallyviolent predator, the court shall, in the case of a prisoner, direct that hebe returned to the custody of the Department of Corrections. The Departmentof Corrections shall immediately release him if his scheduled release datehas passed, or hold him until his scheduled release date. In the case of adefendant, if the court or jury does not find by clear and convincingevidence that he is a sexually violent predator, the court shall order thathe be discharged, involuntarily admitted pursuant to §§ 37.2-814 through37.2-819, or certified for admission pursuant to § 37.2-806.
If he meets the qualifications set forth in subsection B of § 37.2-904 or37.2-907, any expert witness may be permitted to testify at the trial as tohis diagnosis, his opinion as to whether the respondent meets the definitionof a sexually violent predator, his recommendation as to treatment, and thebasis for his opinions. Such opinions shall not be dispositive of whether therespondent is a sexually violent predator.
D. If the court or jury finds the respondent to be a sexually violentpredator, the court shall then determine that the respondent shall becommitted or continue the trial for not less than 45 days nor more than 60days pursuant to subsection E. A continuance extending the case beyond the 60days may be granted to either the Attorney General or the respondent upongood cause shown or by agreement of the parties. In making its determination,the court may consider (i) the nature and circumstances of the sexuallyviolent offense for which the respondent was charged or convicted, includingthe age and maturity of the victim; (ii) the results of any actuarial test,including the likelihood of recidivism; (iii) the results of any diagnostictests previously administered to the respondent under this chapter; (iv) therespondent's mental history, including treatments for mental illness ormental disorders, participation in and response to therapy or treatment, andany history of previous hospitalizations; (v) the respondent's present mentalcondition; (vi) the respondent's disciplinary record and types of infractionshe may have committed while incarcerated or hospitalized; (vii) therespondent's living arrangements and potential employment if he were to beplaced on conditional release; (viii) the availability of transportation andappropriate supervision to ensure participation by the respondent innecessary treatment; and (ix) any other factors that the court deemsrelevant. If after considering the factors listed in § 37.2-912, the courtfinds that there is no suitable less restrictive alternative to involuntarysecure inpatient treatment, the judge shall by written order and specificfindings so certify and order that the respondent be committed to the custodyof the Department for appropriate inpatient treatment in a secure facilitydesignated by the Commissioner. Respondents committed pursuant to thischapter are subject to the provisions of § 19.2-174.1 and Chapter 11 (§37.2-1100 et seq.).
E. If the court determines to continue the trial to receive additionalevidence on possible alternatives to commitment, the court shall require theCommissioner to submit a report to the court, the Attorney General, andcounsel for the respondent suggesting possible alternatives to commitment.The court shall then reconvene the trial and receive testimony on thepossible alternatives to commitment. At the conclusion of testimony on thepossible alternatives to commitment, the court shall consider: (i) thetreatment needs of the respondent; (ii) whether less restrictive alternativesto commitment have been investigated and deemed suitable; (iii) whether anysuch alternatives will accommodate needed and appropriate supervision andtreatment plans for the respondent, including but not limited to, therapy orcounseling, access to medications, availability of travel, and location ofproposed residence; and (iv) whether any such alternatives will accommodateneeded and appropriate regular psychological or physiological testing,including but not limited to, penile plethysmograph testing or sexualinterest testing. If the court finds these criteria are adequately addressedand the court finds that the respondent meets the criteria for conditionalrelease set forth in § 37.2-912, the court shall order that the respondent bereturned to the custody of the Department of Corrections to be processed forconditional release as a sexually violent predator pursuant to hisconditional release plan. The court shall also order the respondent to besubject to electronic monitoring of his location by means of a GPS (GlobalPositioning System) tracking device, or other similar device, at all timeswhile he is on conditional release. Access to anti-androgen medications orother medication prescribed to lower blood serum testosterone shall not beused as a primary reason for determining that less restrictive alternativesare appropriate pursuant to this chapter.
F. The Department shall recommend a specific course of treatment and programsfor provision of such treatment and shall monitor the respondent's compliancewith such treatment as may be ordered by the court under this section, unlessthe respondent is on parole or probation, in which case the parole orprobation officer shall monitor his compliance.
G. In the event of a mistrial, the court shall direct that the prisonerremain in the secure custody of the Department of Corrections or thedefendant remain in the secure custody of the Department until another trialis conducted. Any subsequent trial following a mistrial shall be held within90 days of the previous trial.
(1999, cc. 946, 985, § 37.1-70.9; 2001, c. 776; 2003, cc. 989, 1018; 2004, c.764; 2005, cc. 716, 914; 2006, cc. 863, 914; 2007, c. 876; 2009, c. 740.)