insanity defense in Virginia

2025The Court of Appeals began its analysis by discussing the historical context behind Code § 19.2-271.6, noting that the statute was drafted to overturn Stamper v. Commonwealth, 228 Va. 707 (1985), which held that evidence of a defendant’s mental condition that fell short of an insanity defense was inadmissible.

2023Here, Schmuhl insists that the record conclusively establishes that his trial counsel were ignorant of or misread our decision in Stamper and, therefore, their performance was, by definition, unreasonable. 2 Specifically, Schmuhl contends that this Court’s holding in Stamper stating that “evidence of a criminal defendant’s mental state at the time of the offense is, in the absence of an insanity defense, irrelevant to the issue of guilt,” 228 Va. at 717 , unambiguously established that his trial counsel’s reliance on involuntary intoxication and/or unconsciousness to negate mens rea was doomed

2012See, e.g., Price v. Commonwealth, 228 Va. 452 , 323 S.E.2d 106 (1984) (describing the insanity defense as applied in Virginia).

2012See, e.g., Price v. Commonwealth, 228 Va. 452 , 323 S.E.2d 106 (1984) (describing the insanity defense as applied in Virginia).

2025“Thus, short of raising an insanity defense, a defendant was not permitted to present evidence of his or her mental state or diminished capacity to negate mens rea.” Id.

2025This impulse “must be ‘distinguished from mere passion or overwhelming emotion not growing out of, and connected with, a disease of the mind.’” Id. at 450 (quoting Thompson v. Commonwealth, 193 Va. 704, 717 (1952)). “[I]nvoluntary intoxication is recognized in the Commonwealth as an alternative basis for an insanity defense.”19 Schmuhl v. Commonwealth, 69 Va. App. 281, 302 (2018), aff’d, 298 Va. 131 (2019).

2019The Court then conclusively held that “evidence of a criminal defendant’s mental state at the time of the offense is, in the absence of an insanity defense, irrelevant to the issue of guilt.” Id.2 Peeples v. Commonwealth, 30 Va. App. 626 (1999) (en banc), was discussed on brief and at oral argument by both parties and is also instructive on this issue.

2018Id.; see Peeples v. Commonwealth, 30 Va. App. 626, 633-34 , 519 S.E.2d 382, 385 (1999) (en banc) (citing Stamper and affirming the trial court’s exclusion of expert testimony about the defendant’s mental disability, offered to support his defenses of heat of passion and self-defense, when he did not allege an insanity defense); Bowling v. Commonwealth, 12 Va. App. 166, 172-73 , 403 S.E.2d 375, 378-79 (1991) (citing Stamper and affirming the trial court’s exclusion of expert testimony offered to show that the defendant’s “borderline mental capacity” prevented him from forming the intent to dist

2022The evidence to satisfy the defendant’s production burden on an insanity defense must amount “to more than a scintilla.” Herbin v. Commonwealth, 28 Va. App. 173, 181 (1998).

2009See Lucas v. Commonwealth, 201 Va. 599, 607 , 112 S.E.2d 915, 921 (1960) (holding that defendant was entitled to have the insanity issue decided by a jury despite expert witness’ failure to offer an opinion that defendant was insane at the time of the offense); see also McCulloch v. Commonwealth, 29 Va. App. 769, 774-75 , 514 S.E.2d 797, 800 (1999) (suggesting that, in an appropriate case, factual testimony from laypersons alone may be sufficient to establish an insanity defense); Herbin, 28 Va. App. at 183 , 503 S.E.2d at 231 (same).

2018Id.; see Peeples v. Commonwealth, 30 Va. App. 626, 633-34 , 519 S.E.2d 382, 385 (1999) (en banc) (citing Stamper and affirming the trial court’s exclusion of expert testimony about the defendant’s mental disability, offered to support his defenses of heat of passion and self-defense, when he did not allege an insanity defense); Bowling v. Commonwealth, 12 Va. App. 166, 172-73 , 403 S.E.2d 375, 378-79 (1991) (citing Stamper and affirming the trial court’s exclusion of expert testimony offered to show that the defendant’s “borderline mental capacity” prevented him from forming the intent to dist

2018Id.; see Peeples v. Commonwealth, 30 Va. App. 626, 633-34 , 519 S.E.2d 382, 385 (1999) (en banc) (citing Stamper and affirming the trial court’s exclusion of expert testimony about the defendant’s mental disability, offered to support his defenses of heat of passion and self-defense, when he did not allege an insanity defense); Bowling v. Commonwealth, 12 Va. App. 166, 172-73 , 403 S.E.2d 375, 378-79 (1991) (citing Stamper and affirming the trial court’s exclusion of expert testimony offered to show that the defendant’s “borderline mental capacity” prevented him from forming the intent to dist

2012See Medina v. California, 505 U.S. 437, 449 , 112 S.Ct. 2572, 2579 , 120 L.Ed.2d 353 (1992) (noting that “[wjhile the Due Process Clause affords an incompetent defendant the right not to be tried,” the Supreme Court has “not said that the Constitution requires the States to recognize the insanity defense”).

2012See Medina v. California, 505 U.S. 437, 449 , 112 S.Ct. 2572, 2579 , 120 L.Ed.2d 353 (1992) (noting that “[wjhile the Due Process Clause affords an incompetent defendant the right not to be tried,” the Supreme Court has “not said that the Constitution requires the States to recognize the insanity defense”).

2012Heller v. Doe, 509 U.S. 312, 320 , 113 S.Ct. 2637, 2642 , 125 L.Ed.2d 257 (1993); see, e.g., Golden v. State, 341 Ark. 656 , 21 S.W.3d 801, 804 (Ark.2000) (holding that a rational basis existed for providing criminal defendants in circuit court the statutory right to assert the insanity defense “while not affording the same right to juveniles”).

2012Heller v. Doe, 509 U.S. 312, 320 , 113 S.Ct. 2637, 2642 , 125 L.Ed.2d 257 (1993); see, e.g., Golden v. State, 341 Ark. 656 , 21 S.W.3d 801, 804 (Ark.2000) (holding that a rational basis existed for providing criminal defendants in circuit court the statutory right to assert the insanity defense “while not affording the same right to juveniles”).

2009See Lucas v. Commonwealth, 201 Va. 599, 607 , 112 S.E.2d 915, 921 (1960) (holding that defendant was entitled to have the insanity issue decided by a jury despite expert witness’ failure to offer an opinion that defendant was insane at the time of the offense); see also McCulloch v. Commonwealth, 29 Va. App. 769, 774-75 , 514 S.E.2d 797, 800 (1999) (suggesting that, in an appropriate case, factual testimony from laypersons alone may be sufficient to establish an insanity defense); Herbin, 28 Va. App. at 183 , 503 S.E.2d at 231 (same).

2009See Lucas v. Commonwealth, 201 Va. 599, 607 , 112 S.E.2d 915, 921 (1960) (holding that defendant was entitled to have the insanity issue decided by a jury despite expert witness’ failure to offer an opinion that defendant was insane at the time of the offense); see also McCulloch v. Commonwealth, 29 Va. App. 769, 774-75 , 514 S.E.2d 797, 800 (1999) (suggesting that, in an appropriate case, factual testimony from laypersons alone may be sufficient to establish an insanity defense); Herbin, 28 Va. App. at 183 , 503 S.E.2d at 231 (same).

2022Morgan, 50 Va. App. at 134 .

2018In Morgan v. Commonwealth, 50 Va. App. 120, 132-34 , 646 S.E.2d 899, 905-06 (2007), we affirmed a trial court’s decision to place both the burdens of production and persuasion on the defendant when he pled an “insanity defense of involuntary intoxication.” In Morgan, we referred to the alleged defense as “the affirmative defense of insanity,” and this Court approved jury instructions that required the defendant to prove “that he was insane due to involuntary intoxication.” Id. at 133 , 646 S.E.2d at 905 .

2018Fitzgerald v. Commonwealth, 223 Va. 615, 631 , 292 S.E.2d 798, 807 (1982). - 14 - “irrelevant” to the issue of mens rea where the defendant failed to put forth an insanity defense.

2018Fitzgerald v. Commonwealth, 223 Va. 615, 631 , 292 S.E.2d 798, 807 (1982). - 14 - “irrelevant” to the issue of mens rea where the defendant failed to put forth an insanity defense.

2009See Lucas v. Commonwealth, 201 Va. 599, 607 , 112 S.E.2d 915, 921 (1960) (holding that defendant was entitled to have the insanity issue decided by a jury despite expert witness’ failure to offer an opinion that defendant was insane at the time of the offense); see also McCulloch v. Commonwealth, 29 Va. App. 769, 774-75 , 514 S.E.2d 797, 800 (1999) (suggesting that, in an appropriate case, factual testimony from laypersons alone may be sufficient to establish an insanity defense); Herbin, 28 Va. App. at 183 , 503 S.E.2d at 231 (same).

2009See Lucas v. Commonwealth, 201 Va. 599, 607 , 112 S.E.2d 915, 921 (1960) (holding that defendant was entitled to have the insanity issue decided by a jury despite expert witness’ failure to offer an opinion that defendant was insane at the time of the offense); see also McCulloch v. Commonwealth, 29 Va. App. 769, 774-75 , 514 S.E.2d 797, 800 (1999) (suggesting that, in an appropriate case, factual testimony from laypersons alone may be sufficient to establish an insanity defense); Herbin, 28 Va. App. at 183 , 503 S.E.2d at 231 (same).

2006In my view, in the present case in considering the Commonwealth's motion in limine the trial court decided the merits of the insanity defense of William White, Jr. as an issue of law rather than permitting the jury to determine factually whether White was or was not legally insane. * While insanity is an affirmative defense in Virginia that the accused must prove to the satisfaction of the fact finder by a preponderance of the evidence, Shifflett v. Commonwealth, 221 Va. 760 , 769, 274 S.E.2d 305 , 310 (1981), whether the evidence would meet that standard is not at issue in this appeal.

2006In my view, in the present case in considering the Commonwealth's motion in limine the trial court decided the merits of the insanity defense of William White, Jr. as an issue of law rather than permitting the jury to determine factually whether White was or was not legally insane. * While insanity is an affirmative defense in Virginia that the accused must prove to the satisfaction of the fact finder by a preponderance of the evidence, Shifflett v. Commonwealth, 221 Va. 760 , 769, 274 S.E.2d 305 , 310 (1981), whether the evidence would meet that standard is not at issue in this appeal.

2005See McCulloch, 29 Va.App. at 775 , 514 S.E.2d at 800 ; see also People v. Scala, 128 Misc.2d 831 , 491 N.Y.S.2d 555, 562-63 (N.Y.Sup.Ct.1985) (upholding admissibility, in cases involving insanity defense, of relevant testimony from neurologists and other “nonpsychiatric physicians” as well as “properly qualified licensed nonphysician mental health professionals” such as licensed clinical social workers (emphasis added)).

2005See McCulloch, 29 Va.App. at 775 , 514 S.E.2d at 800 ; see also People v. Scala, 128 Misc.2d 831 , 491 N.Y.S.2d 555, 562-63 (N.Y.Sup.Ct.1985) (upholding admissibility, in cases involving insanity defense, of relevant testimony from neurologists and other “nonpsychiatric physicians” as well as “properly qualified licensed nonphysician mental health professionals” such as licensed clinical social workers (emphasis added)).

2005Cf. Pritchett v. Commonwealth, 263 Va. 182, 187 , 557 S.E.2d 205, 208 (2002) (holding error to exclude proffered expert testimony that defendant was mentally retarded and that his mental retardation rendered him susceptible to suggestive police interrogation resulting in confession "so long as the expert does not opine on the truth of the statement at issue" because "such testimony [would] improperly invade[] the province of the jury to determine the reliability of a witness"). [5] I would assume without deciding, for purposes of this appeal only, that his concession was an accurate statement

2005Cf. Pritchett v. Commonwealth, 263 Va. 182, 187 , 557 S.E.2d 205, 208 (2002) (holding error to exclude proffered expert testimony that defendant was mentally retarded and that his mental retardation rendered him susceptible to suggestive police interrogation resulting in confession "so long as the expert does not opine on the truth of the statement at issue" because "such testimony [would] improperly invade[] the province of the jury to determine the reliability of a witness"). [5] I would assume without deciding, for purposes of this appeal only, that his concession was an accurate statement

2005Cf. Pritchett v. Commonwealth, 263 Va. 182, 187 , 557 S.E.2d 205, 208 (2002) (holding error to exclude proffered expert testimony that defendant was mentally retarded and that his mental retardation rendered him susceptible to suggestive police interrogation resulting in confession "so long as the expert does not opine on the truth of the statement at issue” because “such testimony [would] improperly invade[ ] the province of the jury to determine the reliability of a witness”). .

2005Cf. Pritchett v. Commonwealth, 263 Va. 182, 187 , 557 S.E.2d 205, 208 (2002) (holding error to exclude proffered expert testimony that defendant was mentally retarded and that his mental retardation rendered him susceptible to suggestive police interrogation resulting in confession "so long as the expert does not opine on the truth of the statement at issue” because “such testimony [would] improperly invade[ ] the province of the jury to determine the reliability of a witness”). .

1999As such, this case is distinguishable from Zelenak v. Commonwealth, 25 Va.App, 295, 300, 487 S.E.2d 873, 875 (1997) ( en banc. ) [6] See Stamper, 228 Va. at 717 , 324 S.E.2d at 688 ("we hold that evidence of a criminal defendant's mental state at the time of the offense is, in the absence of an insanity defense, irrelevant to the issue of guilt").

1998As such, this case is distinguishable from Zelenak v. Commonwealth, 25 Va.App. 295, 300 , 487 S.E.2d 873, 875 (1997). [5] See Stamper, 228 Va. at 717 , 324 S.E.2d at 688 ("we hold that evidence of a criminal defendant's mental state at the time of the offense is, in the absence of an insanity defense, irrelevant to the issue of guilt"). [6] In view of our holding on this issue, we need not address Peeples's other issue.

2012Citing Commonwealth v. Chatman, 260 Va. 562 , 538 S.E.2d 304 (2000), appellant conceded that the Supreme Court previously held that a juvenile possesses neither a statutory nor due process right to assert an insanity defense during a delinquency proceeding.

2012Citing Commonwealth v. Chatman, 260 Va. 562 , 538 S.E.2d 304 (2000), appellant conceded that the Supreme Court previously held that a juvenile possesses neither a statutory nor due process right to assert an insanity defense during a delinquency proceeding.

2025This impulse “must be ‘distinguished from mere passion or overwhelming emotion not growing out of, and connected with, a disease of the mind.’” Id. at 450 (quoting Thompson v. Commonwealth, 193 Va. 704, 717 (1952)). “[I]nvoluntary intoxication is recognized in the Commonwealth as an alternative basis for an insanity defense.”19 Schmuhl v. Commonwealth, 69 Va. App. 281, 302 (2018), aff’d, 298 Va. 131 (2019).

1984Defendant asserts that in Virginia the right-wrong test is stated as an alternative to the nature-of-the-act test under a proper definition of the insanity defense. *456 Defendant says that under the “first Virginia case involving insanity,” Dejarnette v. Commonwealth, 75 Va. 867 (1881), and under “more recent Virginia cases” dealing with the substance of the insanity defense, see Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952), the Court discussed the principle from the perspective of instructions offered by the Commonwealth that the defendant was sane.

2009While there is no constitutional right to assert an insanity defense in a criminal proceeding, see Commonwealth v. Chatman, 260 Va. 562, 567-68 , 538 S.E.2d 304, 306-07 (2000), "Virginia has long recognized the common law defense of insanity." White v. Commonwealth, 272 Va. 619, 625 , 636 S.E.2d 353, 356 (2006).

2009While there is no constitutional right to assert an insanity defense in a criminal proceeding, see Commonwealth v. Chatman, 260 Va. 562, 567-68 , 538 S.E.2d 304, 306-07 (2000), "Virginia has long recognized the common law defense of insanity." White v. Commonwealth, 272 Va. 619, 625 , 636 S.E.2d 353, 356 (2006).

2024See Godinez, 509 U.S. at 396 .