2006 Code of Virginia § 19.2-264.3:1.1 - Capital cases; determination of mental retardation

19.2-264.3:1.1. Capital cases; determination of mental retardation.

A. As used in this section and 19.2-264.3:1.2, the following definitionapplies:

"Mentally retarded" means a disability, originating before the age of 18years, characterized concurrently by (i) significantly subaverageintellectual functioning as demonstrated by performance on a standardizedmeasure of intellectual functioning administered in conformity with acceptedprofessional practice, that is at least two standard deviations below themean and (ii) significant limitations in adaptive behavior as expressed inconceptual, social and practical adaptive skills.

B. Assessments of mental retardation under this section and 19.2-264.3:1.2shall conform to the following requirements:

1. Assessment of intellectual functioning shall include administration of atleast one standardized measure generally accepted by the field ofpsychological testing and appropriate for administration to the particulardefendant being assessed, taking into account cultural, linguistic, sensory,motor, behavioral and other individual factors. Testing of intellectualfunctioning shall be carried out in conformity with accepted professionalpractice, and whenever indicated, the assessment shall include informationfrom multiple sources. The Commissioner of Mental Health, Mental Retardationand Substance Abuse Services shall maintain an exclusive list of standardizedmeasures of intellectual functioning generally accepted by the field ofpsychological testing.

2. Assessment of adaptive behavior shall be based on multiple sources ofinformation, including clinical interview, psychological testing andeducational, correctional and vocational records. The assessment shallinclude at least one standardized measure generally accepted by the field ofpsychological testing for assessing adaptive behavior and appropriate foradministration to the particular defendant being assessed, unless notfeasible. In reaching a clinical judgment regarding whether the defendantexhibits significant limitations in adaptive behavior, the examiner shallgive performance on standardized measures whatever weight is clinicallyappropriate in light of the defendant's history and characteristics and thecontext of the assessment.

3. Assessment of developmental origin shall be based on multiple sources ofinformation generally accepted by the field of psychological testing andappropriate for the particular defendant being assessed, including, wheneveravailable, educational, social service, medical records, prior disabilityassessments, parental or caregiver reports, and other collateral data,recognizing that valid clinical assessment conducted during the defendant'schildhood may not have conformed to current practice standards.

C. In any case in which the offense may be punishable by death and is triedbefore a jury, the issue of mental retardation, if raised by the defendant inaccordance with the notice provisions of subsection E of 19.2-264.3:1.2,shall be determined by the jury as part of the sentencing proceeding requiredby 19.2-264.4.

In any case in which the offense may be punishable by death and is triedbefore a judge, the issue of mental retardation, if raised by the defendantin accordance with the notice provisions of subsection E of 19.2-264.3:1.2,shall be determined by the judge as part of the sentencing proceedingrequired by 19.2-264.4.

The defendant shall bear the burden of proving that he is mentally retardedby a preponderance of the evidence.

D. The verdict of the jury, if the issue of mental retardation is raised,shall be in writing, and, in addition to the forms specified in 19.2-264.4,shall include one of the following forms:

(1) "We the jury, on the issue joined, having found the defendant guilty of(here set out the statutory language of the offense charged), and that thedefendant has proven by a preponderance of the evidence that he is mentallyretarded, fix his punishment at (i) imprisonment for life or (ii)imprisonment for life and a fine of $______________.

Signed ____________________________________ foreman"

or

(2) "We the jury, on the issue joined, having found the defendant guilty of(here set out the statutory language of the offense charged) find that thedefendant has not proven by a preponderance of the evidence that he ismentally retarded.

Signed ____________________________________ foreman"

(2003, cc. 1031, 1040.)

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