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2018 SESSION
INTRODUCED
18104061D
SENATE BILL NO. 802
Offered January 10, 2018
A BILL to amend and reenact §§ 19.2-264.3:1.3, 19.2-264.3:3, and 19.2-264.4 of the Code of Virginia
and to amend the Code of Virginia by adding sections numbered 19.2-264.3:1.4 and 19.2-264.3:1.5,
relating to death penalty; severe mental illness.
Be it enacted by the General Assembly of Virginia:
1, That §§ 19.2-264.3:1.3, 19.2-264.3:3, and 19.2-264.4 of the Code of Virginia are amended and
reenacted and that the Code of Virginia is amended by adding sections numbered 19.2-264.3:1.4
and 19,2-264.3:1.5 as follows:
§ 19.2-264.3:1.3. Expert assi: for indi defend in capital cases.
A. In any case in which an indigent defendant (i) is charged with a capital offense and (ii) is found
by the court to be financially unable to pay for expert assistance, the defendant or his attomey may,
upon notice to the Commonwealth, move in circuit court for the court to designate another judge in the
same circuit to hear an ex parte request for the appointment of a qualified expert to assist in the
preparation of the defendant's defense. No ex parte proceeding, communication, or request may be
considered pursuant to this section unless a proper showing is made in an adversarial proceeding before
the trial judge demonstrating a particularized need for confidentiality. Any such proceeding,
communication, or request shall be transcribed and made part of the record available for appellate
review or any other post conviction review.
B. The motion for the appointment of a qualified expert shall be in writing, filed under seal, and
shall be heard ex parte as soon as practicable by the designated judge. Upon hearing the ex parte
request, the designated judge shall find, by clear and convincing evidence, a particularized need for
confidentiality has been demonstrated before considering the request for expert services. After a hearing
upon the motion, the court may order the appointment of a qualified expert upon a showing that the
provision of the requested expert services would materially assist the defendant in preparing his defense
and the lack of such confidential assistance would result in a fundamentally unfair trial. Any expert
appointed pursuant to this subsection shall be compensated in accordance with § 19.2-332. The
designated judge shall direct requests for scientific investigations to the Department of Forensic Science
or Division of Consolidated Laboratory Services whenever practicable.
C. All ex parte hearings conducted under this section shall be on the record, and the record of the
hearings, together with all papers filed and orders entered in connection with ex parte requests for expert
assistance, shall be kept under seal as part of the record of the case. Following decision on the motion,
whether it is granted or denied, the motion shall remain under seal. On motion of any party, and for
good cause shown, the court may unseal the record after the trial is concluded. Following final judgment
and after all appeals have been exhausted, the court shall unseal all records and other material sealed
pursuant to this section. No ex parte ruling by a designated judge pursuant to this section in a
proceeding where the Commonwealth is excluded shall be the subject of a claim of error on appeal, or
form the basis for relief in any post-conviction litigation on behalf of the defendant.
D. This section does not apply to the appointment of a mental health expert pursuant to
§ 19.2-264.3:1 or, 19.2-264.3:1.2, or 19.2-264.3:1.5.
§ 19.2-264.3:1.4. Capital cases; determination of severe mental illness at time of offense.
A. As used in this section and § 19.2-264.3:1.5, "severe mental illness" means the exhibition of active
psychotic symptoms that substantially impair a person's capacity to (i) appreciate the nature,
consequences, or wrongfulness of the person's conduct; (ii) exercise rational judgment in relation to the
person's conduct; or (iii) conform the person's conduct to the requirements of the law. "Severe mental
illness" does not include a disorder manifested primarily by repeated criminal conduct or attributable to
the acute effects of voluntary use of alcohol or any drug.
B. In any case in which the offense may be punishable by death and is tried before a jury, the issue
of whether the defendant had a severe mental illness at the time of the offense, if raised by the
defendant in accordance with the notice provisions of subsection E of § 19.2-264.3:1.5, shall be
determined by the jury as part of the sentencing proceeding required by § 19.2-264.4.
In any case in which the offense may be punishable by death and is tried before a judge, the issue of
whether the defendant had a severe mental illness at the time of the offense, if raised by the defendant
in accordance with the notice provisions of subsection E of § 19.2-264.3:1.5, shall be determined by the
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judge as part of the sentencing proceeding required by § 19.2-264.4.
The defendant has the burden of proving by a preponderance of the evidence that he had a severe
mental illness at the time of the offense.
If the judge or jury determines that the defendant had a severe mental illness at the time of the
offense, the defendant shall be sentenced to life imprisonment.
C. The verdict of the jury, if the issue of whether the defendant had a severe mental illness at the
time of the offense 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 the defendant has proven by a preponderance of the evidence
capital sentencing.
A. Upon (i) motion of the attorney for a defendant charged with or convicted of capital murder and
(ii) a finding by the court that the defendant is financially unable to pay for expert assistance, the court
shall appoint one or more qualified mental health experts to assess whether or not the defendant had a
severe mental illness at the time of the offense and to assist the defense in the preparation and
presentation of information concerning the defendant's severe mental illness. The mental health expert
appointed pursuant to this section shall be (a) a psychiatrist, a clinical psychologist, or an individual
with a doctorate degree in clinical psychology and (b) qualified by experience and by specialized
training, approved by the Commissioner of Behavioral Health and Developmental Services, to perform
forensic evaluations. The defendant shall not be entitled to a mental health expert of the defendant's
own choosing or to funds to employ such expert.
B. Evaluations performed pursuant to subsection A may be combined with evaluations 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 attorney for the defendant a
report assessing whether the defendant had a severe mental illness at the time of the offense. The report
shal include the expert's opinion as to whether the defendant had a severe mental illness at the time of
e offense.
D. The report described in subsection C shall be sent solely to the attorney for the defendant and
shall be protected by the attorney-client privilege. However, the Commonwealth shall be given a copy of
the report, the results of any other evaluation of the defendant's severe mental illness at the time of the
offense, and copies of psychiatric, psychological, medical, or other records obtained during the course
of the evaluation, after the attorney for the defendant gives notice of an intent to present evidence of the
defendant's severe mental illness at the time of the offense pursuant to subsection E.
E. In any case in which a defendant charged with capital murder intends, in the event of conviction,
to present testimony of an expert witness to support a claim that he had a severe mental illness at the
time of the offense, he or his attorney shall give notice in writing to the attorney for the Commonwealth,
at least 60 days before trial, of his intention to present such testimony. In the event that such notice is
not given and the defendant tenders testimony by an expert witness at the sentencing phase of the trial,
then the court may, in its discretion, upon objection of the Commonwealth, either allow the
Commonwealth a continuance or, under appropriate circumstances, bar the defendant from presenting
such evidence.
F, 1. If the attorney for the defendant gives notice pursuant to subsection E and the Commonwealth
thereafter seeks an evaluation concerning whether the defendant had a severe mental illness at the time
of the offense, the court shall appoint one or more qualified experts to perform such an evaluation. The
court shall order the defendant to submit to such an evaluation and advise the defendant on the record
in court that a refusal to cooperate with the Commonwealth's experts could result in exclusion of the
defendant's expert evidence. The qualification of the experts shall be governed by subsection A. The
attorney for the Commonwealth shall be responsible for providing to the experts the information
specified in subsection C of § 19.2-169.5. After performing their evaluation, the experts shall report
their findings and opinions and provide copies of psychiatric, psychological, medical, or other records
obtained during the course of the evaluation to the attorneys for the Commonwealth and the defense at
least 15 days before trial.
2. If the court finds, after hearing evidence presented by the parties, out of the presence of the jury,
that the defendant has refused to cooperate with an evaluation requested by the Commonwealth, the
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court may admit evidence of such refusal or, in the discretion of the court, bar the defendant from
presenting his expert evidence.
§ 19.2-264.3:3. Limitations on use of or di eb during evaluations.
0 stat t_or disclosure by the defendant made during a competency evaluation performed
pursuant to § 19.2-169.1, an evaluation performed pursuant to g 19.2-169.5 to determine sanity at the
time of the offense, treatment provided pursuant to § 19.2-169.2 or 19.2-169.6, a mental condition
evaluation performed pursuant to § 19.2-264.3:1 or, an intellectual disability evaluation performed
pursuant to § 19.2-264.3:1.2, or an evaluation to determine whether the defendant had a severe mental
illness at the time of the offense pursuant to § 19.2-264.3:1.5, and no evidence derived from any such
statements or disclosures may be introduced against the defendant at the sentencing phase of a capital
murder trial for the purpose of proving the aggravating circumstances specified in § 19.2-264.4. Such
statements or disclosures shall be admissible in rebuttal only when relevant to issues in mitigation raised
by the defense.
§ 19.2-264.4. Sentence proceeding.
A. Upon a finding that the defendant is guilty of an offense which may be punishable by death, a
proceeding shall be held which shall be limited to a determination as to whether the defendant shall be
sentenced to death or life imprisonment. Upon request of the defendant, a jury shall be instructed that
for all Class 1 felony offenses committed after January 1, 1995, a defendant shall not be eligible for
parole if sentenced to imprisonment for life. In case of trial by jury, where a sentence of death is not
recommended, the defendant shall be sentenced to imprisonment for life.
Al. In any proceeding conducted pursuant to this section, the court shall permit the victim, as
defined in § 19.2-11.01, upon the motion of the attorney for the Commonwealth, and with the consent of
the victim, to testify in the presence of the accused regarding the impact of the offense upon the victim.
The court shall limit the victim's testimony to the factors set forth in clauses (i) through (vi) of
subsection A of § 19.2-299.1.
B. In cases of trial by jury, evidence may be presented as to any matter which the court deems
relevant to sentence, except that reports under the provisions of § 19.2-299, or under any rule of court,
shall not be admitted into evidence.
Evidence which may be admissible, subject to the rules of evidence governing admissibility, may
include the circumstances surrounding the offense, the history and background of the defendant, and any
other facts in mitigation of the offense. Facts in mitigation may include, but shall not be limited to, the
following: (i) the defendant has no significant history of prior criminal activity, (ii) even if §
19.2-264.3:1.4 is inapplicable as a bar to the death penalty, the capital felony was committed while the
defendant was under the influence of extreme mental or emotional disturbance, (iii) the victim was a
participant in the defendant's conduct or consented to the act, (iv) even if § 19.2-264.3:1.4 is
inapplicable as a bar to the death penalty, at the time of the commission of the capital felony, the
capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was significantly impaired, (v) the age of the defendant at the time of the
commission of the capital offense, or (vi) even if § 19.2-264.3:1.1 is inapplicable as a bar to the death
penalty, the subaverage intellectual functioning of the defendant.
C. The penalty of death shall not be imposed unless the Commonwealth shall prove beyond a
reasonable doubt that there is a probability based upon evidence of the prior history of the defendant or
of the circumstances surrounding the commission of the offense of which he is accused that he would
commit criminal acts of violence that would constitute a continuing serious threat to society, or that his
conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it
involved torture, depravity of mind or aggravated battery to the victim.
D. In the event the jury cannot agree as to the penalty, the court shall dismiss the jury, and impose a
sentence of imprisonment for life.
2. That the provisions of this act may result in a net increase in periods of imprisonment or
commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot
be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter
836 of the Acts of Assembly of 2017 requires the Virginia Criminal Sentencing Commission to
assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the
necessary appropriation cannot be determined for periods of commitment to the custody of the
Department of Juvenile J ustice.
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