2006 Code of Virginia § 19.2-169.1 - Raising question of competency to stand trial or plead; evaluation and determination of competenc...

19.2-169.1. Raising question of competency to stand trial or plead;evaluation and determination of competency.

A. Raising competency issue; appointment of evaluators. - If, at any timeafter the attorney for the defendant has been retained or appointed andbefore the end of trial, the court finds, upon hearing evidence orrepresentations of counsel for the defendant or the attorney for theCommonwealth, that there is probable cause to believe that the defendant,whether a juvenile transferred pursuant to 16.1-269.1 or adult, lackssubstantial capacity to understand the proceedings against him or to assisthis attorney in his own defense, the court shall order that a competencyevaluation be performed by at least one psychiatrist, clinical psychologistor master's level psychologist who is qualified by training and experience inforensic evaluation.

B. Location of evaluation. - The evaluation shall be performed on anoutpatient basis at a mental health facility or in jail unless the courtspecifically finds that outpatient evaluation services are unavailable orunless the results of outpatient evaluation indicate that hospitalization ofthe defendant for evaluation on competency is necessary. If either finding ismade, the court, under authority of this subsection, may order the defendantsent to a hospital designated by the Commissioner of Mental Health, MentalRetardation and Substance Abuse Services as appropriate for evaluations ofpersons under criminal charge. The defendant shall be hospitalized for suchtime as the director of the hospital deems necessary to perform an adequateevaluation of the defendant's competency, but not to exceed thirty days fromthe date of admission to the hospital.

C. Provision of information to evaluators. - The court shall require theattorney for the Commonwealth to provide to the evaluators appointed undersubsection A any information relevant to the evaluation, including, but notlimited to (i) a copy of the warrant or indictment; (ii) the names andaddresses of the attorney for the Commonwealth, the attorney for thedefendant, and the judge ordering the evaluation; (iii) information about thealleged crime; and (iv) a summary of the reasons for the evaluation request.The court shall require the attorney for the defendant to provide anyavailable psychiatric records and other information that is deemed relevant.

D. The competency report. - Upon completion of the evaluation, the evaluatorsshall promptly submit a report in writing to the court and the attorneys ofrecord concerning (i) the defendant's capacity to understand the proceedingsagainst him; (ii) his ability to assist his attorney; and (iii) his need fortreatment in the event he is found incompetent. No statements of thedefendant relating to the time period of the alleged offense shall beincluded in the report.

E. The competency determination. - After receiving the report described insubsection D, the court shall promptly determine whether the defendant iscompetent to stand trial. A hearing on the defendant's competency is notrequired unless one is requested by the attorney for the Commonwealth or theattorney for the defendant, or unless the court has reasonable cause tobelieve the defendant will be hospitalized under 19.2-169.2. If a hearingis held, the party alleging that the defendant is incompetent shall bear theburden of proving by a preponderance of the evidence the defendant'sincompetency. The defendant shall have the right to notice of the hearing,the right to counsel at the hearing and the right to personally participatein and introduce evidence at the hearing.

The fact that the defendant claims to be unable to remember the time periodsurrounding the alleged offense shall not, by itself, bar a finding ofcompetency if the defendant otherwise understands the charges against him andcan assist in his defense. Nor shall the fact that the defendant is under theinfluence of medication bar a finding of competency if the defendant is ableto understand the charges against him and assist in his defense whilemedicated.

(1982, c. 653; 1983, c. 373; 1985, c. 307; 2003, c. 735.)