Virginia Code

Va. Code Ann. § 19.2-169.1 (2026)

Raising question of competency to stand trial or plead; evaluation and determination of competency

✓ current as of May 2026

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A. Raising competency issue; appointment of evaluators. — If, at any time after the attorney for the defendant has been retained or appointed and before the end of trial, the court finds, upon hearing evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant to § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner.

B. Location of evaluation. — The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless an outpatient evaluation has been conducted and the outpatient evaluator opines that a hospital-based evaluation is needed to reliably reach an opinion or unless the defendant is in the custody of the Commissioner of Behavioral Health and Developmental Services pursuant to § 19.2-169.2, 19.2-169.6, 19.2-182.2, 19.2-182.3, 19.2-182.8, 19.2-182.9, or Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2.

C. Provision of information to evaluators. — The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant, and the judge ordering the evaluation; (iii) information about the alleged crime; and (iv) a summary of the reasons for the evaluation request. The court shall require the attorney for the defendant to provide any available psychiatric records and other information that is deemed relevant. The court shall require that information be provided to the evaluator within 96 hours of the issuance of the court order pursuant to this section.

D. The competency report. — Upon completion of the evaluation, the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant's capacity to understand the proceedings against him; (ii) the defendant's ability to assist his attorney; (iii) the defendant's need for treatment in the event he is found incompetent but restorable or incompetent for the foreseeable future; and (iv) if the defendant has been charged with a misdemeanor violation of Article 3 (§ 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation of § 18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128, whether the defendant should be evaluated to determine whether he meets the criteria for temporary detention pursuant to § 37.2-809 in the event he is found incompetent but restorable or incompetent for the foreseeable future.

If a need for restoration treatment is identified pursuant to clause (iii), the report shall state whether inpatient or outpatient treatment (community-based or jail-based) is recommended. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services board or behavioral health authority. In cases where a defendant is likely to remain incompetent for the foreseeable future due to an ongoing and irreversible medical condition, and where prior medical or educational records are available to support the diagnosis, or if the defendant was previously determined to be unrestorably incompetent in the past two years, the report may recommend that the court find the defendant unrestorably incompetent to stand trial and the court may proceed with the disposition of the case in accordance with § 19.2-169.3. No statements of the defendant relating to the time period of the alleged offense shall be included in the report. The evaluator shall also send a redacted copy of the report removing references to the defendant's name, date of birth, case number, and court of jurisdiction to the Commissioner of Behavioral Health and Developmental Services for the purpose of peer review to establish and maintain the list of approved evaluators described in subsection A.

E. The competency determination. — After receiving the report described in subsection D, the court shall promptly determine whether the defendant is competent to stand trial. A hearing on the defendant's competency is not required unless one is requested by the attorney for the Commonwealth or the attorney for the defendant, or unless the court has reasonable cause to believe the defendant will be hospitalized under § 19.2-169.2. If a hearing is held, the party alleging that the defendant is incompetent shall bear the burden of proving by a preponderance of the evidence the defendant's incompetency. The defendant shall have the right to notice of the hearing, the right to counsel at the hearing and the right to personally participate in and introduce evidence at the hearing.

The fact that the defendant claims to be unable to remember the time period surrounding the alleged offense shall not, by itself, bar a finding of competency if the defendant otherwise understands the charges against him and can assist in his defense. Nor shall the fact that the defendant is under the influence of medication bar a finding of competency if the defendant is able to understand the charges against him and assist in his defense while medicated.

F. Finding. — If the court finds the defendant competent to stand trial, the case shall be set for trial or a preliminary hearing. If the court finds the defendant either incompetent but restorable or incompetent for the foreseeable future, the court shall proceed pursuant to § 19.2-169.2.

1982, c. 653; 1983, c. 373; 1985, c. 307; 2003, c. 735; 2007, c. 781; 2009, cc. 813, 840; 2014, cc. 329, 739; 2016, c. 445; 2018, c. 367; 2020, cc. 299, 937, 1121; 2021, Sp. Sess. I, c. 316; 2022, c. 508; 2023, cc. 229, 230.

Notes of Decisions

Cited in 66 cases (16 in the last 5 years), 1984–2026 · leading case: Brown v. Commonwealth, 702 S.E.2d 582 (Va. Ct. App. 2010).

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Brown v. Commonwealth, 702 S.E.2d 582 (Va. Ct. App. 2010). · cites it 42× “Code § 19.2-169.1 governs the mechanism by which a criminal defendant is declared incompetent and restored to competency.”

Burns v. Commonwealth, 541 S.E.2d 872 (Va. 2001). · cites it 12× “13 At that time, Burns’ counsel proffered to the court that Bums had advised his counsel that he did not want to participate anymore, and wanted to leave the courtroom and return to the jail.”

Grattan v. Com., 685 S.E.2d 634 (Va. 2009). · cites it 8× “Grattan also argued that the court, pursuant to Code § 19.2-169.1, should order a competency evaluation prior to sentencing.”

Johnson v. Commonwealth, 669 S.E.2d 368 (Va. Ct. App. 2008). · cites it 12× “*375 The General Assembly has provided a framework for considering whether to order a competency evaluation in Code § 19.2-169.1(A). This section provides that if "there is probable cause to believe that the defendant .”

Tuggle v. Commonwealth, 334 S.E.2d 838 (Va. 1985). · cites it 8× “One evaluation, pursuant to Code § 19.2-169.1, would determine Tuggle’s “capacity to understand the proceedings against him or to assist his attorney in his own defense.”

Jones v. Commonwealth, 414 S.E.2d 193 (Va. Ct. App. 1992). · cites it 8× “*569 On defendant’s motion, the trial court ordered a competency evaluation pursuant to Code § 19.2-169.1. This statute prescribes the procedure to determine the mental “capacity” of an accused “to understand the proceedings against him” or “assist his attorney in his own…”

Orndorff v. Commonwealth, 613 S.E.2d 876 (Va. Ct. App. 2005). · cites it 16× “Based on these evaluations, the trial court ruled that appellant was not competent at that time to be sentenced and ordered her committed to Central State Hospital for a mental health evaluation pursuant to Code §§ 19.2-169.1 and 19.2-176. [4] *881 Appellant remained at Central…”

Orndorff v. Com., 628 S.E.2d 344 (Va. 2006). · cites it 4× “The court entered an order committing her to Central State Hospital (Central State) for evaluation and treatment pursuant to Code § 19.2-169.1. Orndorff remained at Central State for eight months under the care of Dr.”

State v. Reid, 164 S.W.3d 286 (Tenn. 2005). · cites it 2× “Ann. § 16-8-111; Conn. Gen. Stat. Ann. § 54 -56d; Mo.”

Washington v. Commonwealth, 323 S.E.2d 577 (Va. 1984). · cites it 4× “was 69, a score at the “upper limits of mild mental retardation,” but that he was actually functioning at a higher intellectual level called “borderline.”

Snurkowski v. Commonwealth, 348 S.E.2d 1 (Va. Ct. App. 1986). · cites it 6× “1 provided that “upon hearing evidence or representations of counsel, that there is probable cause to believe that the defendant lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a…”

Pruett v. Thompson, 771 F. Supp. 1428 (E.D. Va. 1991). · cites it 4× “3:1 grant him an entitlement to psychiatric assistance, and that due process “stand[s] for the unremarkable proposition that a state may not create an entitlement, and thereby a due process interest, and then deny the entitlement arbitrarily.” He claims that Dr. Tsao’s…”

Show all 66 citing cases →

— Va. Code Ann. § 19.2-169.1(A) — 23 cases

Johnson v. Commonwealth, 669 S.E.2d 368 (Va. Ct. App. 2008). “*375 The General Assembly has provided a framework for considering whether to order a competency evaluation in Code § 19.2-169.1(A). This section provides that if "there is probable cause to believe that the defendant .”

Burns v. Commonwealth, 541 S.E.2d 872 (Va. 2001). “13 At that time, Burns’ counsel proffered to the court that Bums had advised his counsel that he did not want to participate anymore, and wanted to leave the courtroom and return to the jail.”

Brown v. Commonwealth, 702 S.E.2d 582 (Va. Ct. App. 2010). “Code § 19.2-169.1 governs the mechanism by which a criminal defendant is declared incompetent and restored to competency.”

Pruett v. Thompson, 771 F. Supp. 1428 (E.D. Va. 1991). “3:1 grant him an entitlement to psychiatric assistance, and that due process “stand[s] for the unremarkable proposition that a state may not create an entitlement, and thereby a due process interest, and then deny the entitlement arbitrarily.” He claims that Dr. Tsao’s…”

Burns v. Com., 541 S.E.2d 872 (Va. 2001).

— Va. Code Ann. § 19.2-169.1(B) — 2 cases

Eric Torez Clark v. Commonwealth of Virginia (Va. Ct. App. 2021).

Anthony Tremaine Stewart v. Commonwealth of Virginia (Va. Ct. App. 2023).

— Va. Code Ann. § 19.2-169.1(D) — 3 cases

Brown v. Commonwealth, 702 S.E.2d 582 (Va. Ct. App. 2010). “Code § 19.2-169.1 governs the mechanism by which a criminal defendant is declared incompetent and restored to competency.”

Anthony Tremaine Stewart v. Commonwealth of Virginia (Va. Ct. App. 2023).

Murphy v. Smith (ORDER), 831 S.E.2d 502 (Va. 2019).

— Va. Code Ann. § 19.2-169.1(E) — 17 cases

Brown v. Commonwealth, 702 S.E.2d 582 (Va. Ct. App. 2010). “Code § 19.2-169.1 governs the mechanism by which a criminal defendant is declared incompetent and restored to competency.”

Grattan v. Com., 685 S.E.2d 634 (Va. 2009). “Grattan also argued that the court, pursuant to Code § 19.2-169.1, should order a competency evaluation prior to sentencing.”

Orndorff v. Com., 628 S.E.2d 344 (Va. 2006). “The court entered an order committing her to Central State Hospital (Central State) for evaluation and treatment pursuant to Code § 19.2-169.1. Orndorff remained at Central State for eight months under the care of Dr.”

Washington v. Commonwealth, 323 S.E.2d 577 (Va. 1984). “was 69, a score at the “upper limits of mild mental retardation,” but that he was actually functioning at a higher intellectual level called “borderline.”

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