2006 Code of Virginia § 19.2-264.3:1.2 - Expert assistance when issue of defendant\'s mental retardation relevant to capital sentencin...

19.2-264.3:1.2. Expert assistance when issue of defendant's mentalretardation relevant to 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 assess whether or not thedefendant is mentally retarded and to assist the defense in the preparationand presentation of information concerning the defendant's mentalretardation. The mental health expert appointed pursuant to this sectionshall be (a) a psychiatrist, a clinical psychologist or an individual with adoctorate degree in clinical psychology, (b) skilled in the administration,scoring and interpretation of intelligence tests and measures of adaptivebehavior and (c) qualified by experience and by specialized training,approved by the Commissioner of Mental Health, Mental Retardation andSubstance Abuse Services, to perform forensic evaluations. The defendantshall not be entitled to a mental health expert of the defendant's ownchoosing or to funds to employ such expert.

B. Evaluations performed pursuant to subsection A may be combined withevaluations performed pursuant to 19.2-169.1, 19.2-169.5, or 19.2-264.3:1.

C. The expert appointed pursuant to subsection A shall submit to the attorneyfor the defendant a report assessing whether the defendant is mentallyretarded. The report shall include the expert's opinion as to whether thedefendant is mentally retarded.

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 a copy of the report, the results ofany other evaluation of the defendant's mental retardation and copies ofpsychiatric, psychological, medical or other records obtained during thecourse of the evaluation, after the attorney for the defendant gives noticeof an intent to present evidence of mental retardation pursuant to subsectionE.

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 that he is mentally retarded, he or his attorney shall give notice inwriting to the attorney for the Commonwealth, at least 21 days before trial,of his intention to present such testimony. In the event that such notice isnot given 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 the defendant's mental retardation, the court shall appoint oneor more qualified experts to perform such an evaluation. The court shallorder the defendant to submit to such an evaluation, and advise the defendanton the record in court that a refusal to cooperate with the Commonwealth'sexperts could result in exclusion of the defendant's expert evidence. Thequalification of the experts shall be governed by subsection A. The attorneyfor the Commonwealth shall be responsible for providing the experts theinformation specified in subsection C of 19.2-169.5. After performing theirevaluation, the experts shall report their findings and opinions and providecopies of psychiatric, psychological, medical or other records obtainedduring the course of the evaluation to the attorneys for the Commonwealth andthe 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.

(2003, cc. 1031, 1040.)