Virginia Code

Va. Code Ann. § 37.2-908 (2026)

Trial; right to trial by jury; standard of proof; discovery

✓ current as of May 2026

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A. Within 120 days after the completion of the probable cause hearing held pursuant to § 37.2-906, the court shall conduct a trial to determine whether the respondent is a sexually violent predator. A continuance extending the case beyond the 120 days may be granted to either the Attorney General or the respondent upon good cause shown or by agreement of the parties.

B. The Attorney General or the respondent shall have the right to a trial by jury. Seven persons from a panel of 13 shall constitute a jury in such cases. If a jury determines that the respondent is a sexually violent predator, a unanimous verdict shall be required. If no demand is made by either party for a trial by jury, the trial shall be before the court.

C. The court or jury shall determine whether, by clear and convincing evidence, the respondent is a sexually violent predator. If the court or jury does not find clear and convincing evidence that the respondent is a sexually violent predator, the court shall, in the case of a prisoner, direct that he be returned to the custody of the Department of Corrections. The Department of Corrections shall immediately release him if his scheduled release date has passed, or hold him until his scheduled release date. In the case of a defendant, if the court or jury does not find by clear and convincing evidence that he is a sexually violent predator, the court shall order that he be discharged, involuntarily admitted pursuant to §§ 37.2-814 through 37.2-819, or certified for admission pursuant to § 37.2-806.

If he meets the qualifications set forth in subsection B of § 37.2-904 or 37.2-907, any expert witness may be permitted to testify at the trial as to his diagnosis, his opinion as to whether the respondent meets the definition of a sexually violent predator, his recommendation as to treatment, and the basis for his opinions. Such opinions shall not be dispositive of whether the respondent is a sexually violent predator.

D. If the court or jury finds the respondent to be a sexually violent predator, the court shall then determine that the respondent shall be committed or continue the trial for not less than 45 days nor more than 60 days pursuant to subsection E. A continuance extending the case beyond the 60 days may be granted to either the Attorney General or the respondent upon good cause shown or by agreement of the parties. In making its determination, the court may consider (i) the nature and circumstances of the sexually violent offense for which the respondent was charged or convicted, including the age and maturity of the victim; (ii) the results of any actuarial test, including the likelihood of recidivism; (iii) the results of any diagnostic tests previously administered to the respondent under this chapter; (iv) the respondent's mental history, including treatments for mental illness or mental disorders, participation in and response to therapy or treatment, and any history of previous hospitalizations; (v) the respondent's present mental condition; (vi) the respondent's disciplinary record and types of infractions he may have committed while incarcerated or hospitalized; (vii) the respondent's living arrangements and potential employment if he were to be placed on conditional release; (viii) the availability of transportation and appropriate supervision to ensure participation by the respondent in necessary treatment; and (ix) any other factors that the court deems relevant. If after considering the factors listed in § 37.2-912, the court finds that there is no suitable less restrictive alternative to involuntary secure inpatient treatment, the judge shall by written order and specific findings so certify and order that the respondent be committed to the custody of the Department for appropriate inpatient treatment in a secure facility designated by the Commissioner. Respondents committed pursuant to this chapter are subject to the provisions of § 19.2-174.1 and Chapter 11 (§ 37.2-1100 et seq.).

E. If the court determines to continue the trial to receive additional evidence on possible alternatives to commitment, the court shall require the Commissioner to submit a report to the court, the Attorney General, and counsel for the respondent suggesting possible alternatives to commitment. The court shall then reconvene the trial and receive testimony on the possible alternatives to commitment. At the conclusion of testimony on the possible alternatives to commitment, the court shall consider: (i) the treatment needs of the respondent; (ii) whether less restrictive alternatives to commitment have been investigated and deemed suitable; (iii) whether any such alternatives will accommodate needed and appropriate supervision and treatment plans for the respondent, including but not limited to, therapy or counseling, access to medications, availability of travel, and location of proposed residence; and (iv) whether any such alternatives will accommodate needed and appropriate regular psychological or physiological testing, including but not limited to, penile plethysmograph testing or sexual interest testing. If the court finds these criteria are adequately addressed and the court finds that the respondent meets the criteria for conditional release set forth in § 37.2-912, the court shall order that the respondent be returned to the custody of the Department of Corrections to be processed for conditional release as a sexually violent predator pursuant to his conditional release plan. The court shall also order the respondent to be subject to electronic monitoring of his location by means of a GPS (Global Positioning System) tracking device, or other similar device, at all times while he is on conditional release. Access to anti-androgen medications or other medication prescribed to lower blood serum testosterone shall not be used as a primary reason for determining that less restrictive alternatives are appropriate pursuant to this chapter.

F. The Department shall recommend a specific course of treatment and programs for provision of such treatment and shall monitor the respondent's compliance with such treatment as may be ordered by the court under this section, unless the respondent is on parole or probation, in which case the parole or probation officer shall monitor his compliance.

G. In the event of a mistrial, the court shall direct that the prisoner remain in the secure custody of the Department of Corrections or the defendant remain in the secure custody of the Department until another trial is conducted. Any subsequent trial following a mistrial shall be held within 90 days of the previous trial.

1999, cc. 946, 985, § 37.1-70.9; 2001, c. 776; 2003, cc. 989, 1018; 2004, c. 764; 2005, cc. 716, 914; 2006, cc. 863, 914; 2007, c. 876; 2009, c. 740.

Notes of Decisions

Cited in 32 cases (9 in the last 5 years), 2007–2026 · leading case: Com. v. Wynn, 671 S.E.2d 137 (Va. 2009).

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Com. v. Wynn, 671 S.E.2d 137 (Va. 2009). · cites it 8× “See Code § 37.2-908(B). At the conclusion of the evidence, the jury returned a verdict finding that Wynn is not a sexually violent predator.”

Commonwealth v. Proffitt, 792 S.E.2d 3 (Va. 2016). · cites it 2× “2-900 defines "[s]exually violent predator" as any person who (i) has been convicted of a sexually violent offense, or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to § 19.2-169.3; and (ii) because of a mental…”

Lawrence v. Com., 689 S.E.2d 748 (Va. 2010). · cites it 6× “1, an expert witness may rely upon "facts, circumstances or data made known to ... such witness" in formulating an opinion; those "facts, circumstances or data .”

Com. v. Miller, 643 S.E.2d 208 (Va. 2007). · cites it 6× “For these reasons, we will reverse the circuit court's judgment, enter judgment for the Commonwealth that Miller is a sexually violent predator as defined by the Act, and remand the case to the circuit court for further proceedings as directed in Code § 37.2-908. Reversed,…”

Kim v. Dir., Virginia Dep't of Corr., 103 F. Supp. 3d 749 (E.D. Va. 2015). · cites it 18× “” Va.Code § 37.2-908(A). At this hearing, the “respondent shall have the right to a trial by jury.”

Com. v. Jackson, 661 S.E.2d 810 (Va. 2008). · cites it 2× “" The meaning of "probable cause" and the standards of a probable cause hearing under the SVPA have not been previously addressed by this Court. The General Assembly has also not defined "probable cause" for purposes of the SVPA.”

Com. v. Squire, 685 S.E.2d 631 (Va. 2009). · cites it 2× “Code § 37.2-908(C). The trial court specifically stated that it "listened carefully to the reports" of the experts but that it also considered "the chronology of the defendant's life.”

Com. v. Garrett, 667 S.E.2d 739 (Va. 2008). · cites it 2× “In anticipation of a subsequent trial on the merits of its petition to civilly commit Garrett pursuant to Code § 37.2-908, the Commonwealth, during the January 30, 2007 hearing, informed the circuit court that it "need[ed] to get records from the Department of Juvenile Justice…”

Smith v. Com., 694 S.E.2d 578 (Va. 2010). · cites it 2× “2d 137 (2009), where this Court stated as follows: Code § 37.2-908(C) provides that an expert witness testifying at an SVPA trial may state the basis for his opinions.”

Ellison v. Com., 639 S.E.2d 209 (Va. 2007). · cites it 2× “Code § 37.2-908(C). We have held that standard to meet the demands of due process.”

Harris v. Com., 688 S.E.2d 279 (Va. 2010). · cites it 4× “Prior to the trial to determine whether Harris was a sexually violent predator, see Code § 37.2-908, he filed a motion to dismiss the Commonwealth's petition.”

Com. v. Bell, 714 S.E.2d 562 (Va. 2011). · cites it 4× “But, Bell contends, under Code § 37.2-908(C), the opinion of an expert witness in a sexually violent predator case may "not be dispositive of whether the respondent is a sexually violent predator.”

Show all 32 citing cases →

— Va. Code Ann. § 37.2-908(A) — 1 case

Kim v. Dir., Virginia Dep't of Corr., 103 F. Supp. 3d 749 (E.D. Va. 2015). “” Va.Code § 37.2-908(A). At this hearing, the “respondent shall have the right to a trial by jury.”

— Va. Code Ann. § 37.2-908(B) — 2 cases

Com. v. Wynn, 671 S.E.2d 137 (Va. 2009). “See Code § 37.2-908(B). At the conclusion of the evidence, the jury returned a verdict finding that Wynn is not a sexually violent predator.”

Kim v. Dir., Virginia Dep't of Corr., 103 F. Supp. 3d 749 (E.D. Va. 2015). “” Va.Code § 37.2-908(A). At this hearing, the “respondent shall have the right to a trial by jury.”

— Va. Code Ann. § 37.2-908(C) — 18 cases

Commonwealth v. Proffitt, 792 S.E.2d 3 (Va. 2016). “2-900 defines "[s]exually violent predator" as any person who (i) has been convicted of a sexually violent offense, or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to § 19.2-169.3; and (ii) because of a mental…”

Lawrence v. Com., 689 S.E.2d 748 (Va. 2010). “1, an expert witness may rely upon "facts, circumstances or data made known to ... such witness" in formulating an opinion; those "facts, circumstances or data .”

Com. v. Wynn, 671 S.E.2d 137 (Va. 2009). “See Code § 37.2-908(B). At the conclusion of the evidence, the jury returned a verdict finding that Wynn is not a sexually violent predator.”

Com. v. Squire, 685 S.E.2d 631 (Va. 2009). “Code § 37.2-908(C). The trial court specifically stated that it "listened carefully to the reports" of the experts but that it also considered "the chronology of the defendant's life.”

Com. v. Miller, 643 S.E.2d 208 (Va. 2007). “For these reasons, we will reverse the circuit court's judgment, enter judgment for the Commonwealth that Miller is a sexually violent predator as defined by the Act, and remand the case to the circuit court for further proceedings as directed in Code § 37.2-908. Reversed,…”

— Va. Code Ann. § 37.2-908(D) — 13 cases

Kim v. Dir., Virginia Dep't of Corr., 103 F. Supp. 3d 749 (E.D. Va. 2015). “” Va.Code § 37.2-908(A). At this hearing, the “respondent shall have the right to a trial by jury.”

Harris v. Com., 688 S.E.2d 279 (Va. 2010). “Prior to the trial to determine whether Harris was a sexually violent predator, see Code § 37.2-908, he filed a motion to dismiss the Commonwealth's petition.”

Gibson v. Commonwealth (Va. 2014).

Thomas v. Commonwealth, 829 S.E.2d 534 (Va. 2019).

— Va. Code Ann. § 37.2-908(E) — 4 cases

Gibson v. Commonwealth (Va. 2014).

Thomas v. Commonwealth, 829 S.E.2d 534 (Va. 2019).

Thomas v. Commonwealth (CORRECTED) (Va. 2019).

Will Lee Carter v. Commonwealth of Virginia (Va. Ct. App. 2024).

— Va. Code Ann. § 37.2-908(H) — 1 case

Com. v. Jackson, 661 S.E.2d 810 (Va. 2008). “" The meaning of "probable cause" and the standards of a probable cause hearing under the SVPA have not been previously addressed by this Court. The General Assembly has also not defined "probable cause" for purposes of the SVPA.”

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