A. Raising issue of sanity at the time of offense; appointment of evaluators. -- If, at any time before trial, the court finds, upon hearing evidence or representations of counsel for the defendant, that there is probable cause to believe that the defendant's sanity will be a significant factor in his defense and that the defendant is financially unable to pay for expert assistance, the court shall appoint one or more qualified mental health experts to evaluate the defendant's sanity at the time of the offense and, where appropriate, to assist in the development of an insanity defense. Such mental health expert shall be a psychiatrist or a clinical psychologist who (i) has performed forensic examinations, (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. The defendant shall not be entitled to a mental health expert of his own choosing or to funds to employ such expert.
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 evaluator. -- The court shall require the party making the motion for the evaluation, and such other parties as the court deems appropriate, to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) 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 who appointed the expert; (iii) information pertaining to the alleged crime, including statements by the defendant made to the police and transcripts of preliminary hearings, if any; (iv) a summary of the reasons for the evaluation request; (v) any available psychiatric, psychological, medical or social records that are deemed relevant; and (vi) a copy of the defendant's criminal record, to the extent reasonably available.
D. The evaluators shall prepare a full report concerning the defendant's sanity at the time of the offense, including whether he may have had a significant mental disease or defect which rendered him insane at the time of the offense. The report shall be prepared within the time period designated by the court, said period to include the time necessary to obtain and evaluate the information specified in subsection C.
E. Disclosure of evaluation results. -- The report described in subsection D shall be sent solely to the attorney for the defendant and shall be deemed to be protected by the lawyer-client privilege. However, the Commonwealth shall be given the report in all felony cases, the results of any other evaluation of the defendant's sanity at the time of the offense, and copies of psychiatric, psychological, medical, or other records obtained during the course of any such evaluation, after the attorney for the defendant gives notice of an intent to present psychiatric or psychological evidence pursuant to § 19.2-168. In addition, in all cases, the evaluator shall 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.
F. In any case where the defendant obtains his own expert to evaluate the defendant's sanity at the time of the offense, the provisions of subsections D and E, relating to the disclosure of the evaluation results, shall apply.
1982, c. 653; 1986, c. 535; 1987, c. 439; 1996, cc. 937, 980; 2005, c. 428; 2009, cc. 813, 840; 2016, c. 445; 2018, c. 367.
Notes of Decisions
Cited in
26
cases (
4 in the last 5 years), 1985–2025 · leading case:
Schwartz v. Commonwealth, 611 S.E.2d 631 (Va. Ct. App. 2005).
Schwartz v. Commonwealth, 611 S.E.2d 631 (Va. Ct. App. 2005).
· cites it 48× “The court directed Loudoun County Mental Health Center to perform a mental evaluation to determine Hulbert’s sanity at the time of the offense, pursuant to Code § 19.2-169.5, and to assist Hulbert’s counsel in his criminal defense, including providing treatment to Hulbert if…”
Artis v. Ottenberg's Bakers, Inc., 608 S.E.2d 512 (Va. Ct. App. 2005).
· cites it 4× “2d 622, 626 (1966) (stating that "the use of the psychologist in present society is growing and with this will come an increasing tendency to call him as an expert witness on the question of mental condition" (internal quotation marks omitted)); Code § 19.2-169.5 (providing that…”
White v. Commonwealth, 616 S.E.2d 49 (Va. Ct. App. 2005).
· cites it 12× “Code § 19.2-169.5 governs the appointment of a qualified mental health expert or experts to evaluate the sanity of a defendant who establishes "probable cause to believe that the defendant's sanity will be a significant factor in his defense and that the defendant *57 is…”
White v. Commonwealth, 605 S.E.2d 337 (Va. Ct. App. 2004).
· cites it 12× “Code § 19.2-169.5 governs the appointment of a qualified mental health expert or experts to evaluate the sanity of a defendant who establishes "probable cause to believe that the defendant's sanity will be a significant factor in his defense and that the defendant is financially…”
Funk v. Commonwealth, 379 S.E.2d 371 (Va. Ct. App. 1989).
· cites it 16× “Following Funk’s arrest for rape, and after defense counsel made a preliminary showing that sanity at the time of the alleged offense would likely be a substantial issue, the trial court ordered that a psychiatric evaluation be conducted at Central State Hospital to determine…”
Tuggle v. Commonwealth, 334 S.E.2d 838 (Va. 1985).
· cites it 4× “” The other evaluation, pursuant to Code § 19.2-169.5, would determine whether Tuggle was sane at the time of *102 the offense.”
White v. Com., 636 S.E.2d 353 (Va. 2006).
· cites it 4× “Skinner was not qualified as an expert pursuant to Code § 19.2-169.5; however, he was offered as a lay witness.”
Moten v. Commonwealth, 374 S.E.2d 704 (Va. Ct. App. 1988).
· cites it 4× “…has been "probable cause to believe that the defendant's sanity will be a significant factor in his defense." See Code § 19.2-169.5.”
Pruett v. Commonwealth, 351 S.E.2d 1 (Va. 1986).
· cites it 2× “2 At the time of the proceedings below, Code § 19.2-169.5(E) provided that a summary of the evaluation “shall be sent to the attorney for the Commonwealth and the court” and *275 that the full report “shall be sent solely to the attorney for the defendant and shall be deemed to…”
Commonwealth v. Chatman, 538 S.E.2d 304 (Va. 2000).
· cites it 4× “The Court of Appeals awarded the appeal, reversed the judgment of the circuit court, and remanded the case for a determination of whether Chatman is entitled to a mental health evaluation pursuant to Code § 19.”
Zelenak v. Commonwealth, 487 S.E.2d 873 (Va. Ct. App. 1997).
· cites it 2× “1, a mental state at the time of the offense evaluation ordered pursuant to § 19.2-169.5, or treatment ordered pursuant to § 19.”
— Va. Code Ann. § 19.2-169.5(A) — 6 cases
Schwartz v. Commonwealth, 611 S.E.2d 631 (Va. Ct. App. 2005).
“The court directed Loudoun County Mental Health Center to perform a mental evaluation to determine Hulbert’s sanity at the time of the offense, pursuant to Code § 19.2-169.5, and to assist Hulbert’s counsel in his criminal defense, including providing treatment to Hulbert if…”
Funk v. Commonwealth, 379 S.E.2d 371 (Va. Ct. App. 1989).
“Following Funk’s arrest for rape, and after defense counsel made a preliminary showing that sanity at the time of the alleged offense would likely be a substantial issue, the trial court ordered that a psychiatric evaluation be conducted at Central State Hospital to determine…”
White v. Commonwealth, 616 S.E.2d 49 (Va. Ct. App. 2005).
“Code § 19.2-169.5 governs the appointment of a qualified mental health expert or experts to evaluate the sanity of a defendant who establishes "probable cause to believe that the defendant's sanity will be a significant factor in his defense and that the defendant *57 is…”
White v. Commonwealth, 605 S.E.2d 337 (Va. Ct. App. 2004).
“Code § 19.2-169.5 governs the appointment of a qualified mental health expert or experts to evaluate the sanity of a defendant who establishes "probable cause to believe that the defendant's sanity will be a significant factor in his defense and that the defendant is financially…”
— Va. Code Ann. § 19.2-169.5(D) — 2 cases
Schwartz v. Commonwealth, 611 S.E.2d 631 (Va. Ct. App. 2005).
“The court directed Loudoun County Mental Health Center to perform a mental evaluation to determine Hulbert’s sanity at the time of the offense, pursuant to Code § 19.2-169.5, and to assist Hulbert’s counsel in his criminal defense, including providing treatment to Hulbert if…”
— Va. Code Ann. § 19.2-169.5(E) — 5 cases
Schwartz v. Commonwealth, 611 S.E.2d 631 (Va. Ct. App. 2005).
“The court directed Loudoun County Mental Health Center to perform a mental evaluation to determine Hulbert’s sanity at the time of the offense, pursuant to Code § 19.2-169.5, and to assist Hulbert’s counsel in his criminal defense, including providing treatment to Hulbert if…”
Pruett v. Commonwealth, 351 S.E.2d 1 (Va. 1986).
“2 At the time of the proceedings below, Code § 19.2-169.5(E) provided that a summary of the evaluation “shall be sent to the attorney for the Commonwealth and the court” and *275 that the full report “shall be sent solely to the attorney for the defendant and shall be deemed to…”
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