                                 CODE OF VIRGINIA

RAISING QUESTION OF COMPETENCY TO STAND TRIAL OR PLEAD; EVALUATION AND
DETERMINATION OF COMPETENCY (§ 19.2-169.1)

A. Raising competency issue; appointment of evaluators. &#x2014; 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 &#xA7; 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. &#x2014; 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 &#xA7; 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 (&#xA7; 37.2-814 et seq.) of
Chapter 8 of Title 37.2.

C. Provision of information to evaluators. &#x2014; 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. &#x2014; 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&#8217;s capacity to understand
the proceedings against him; (ii) the defendant&#8217;s ability to assist his
attorney; (iii) the defendant&#8217;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
(&#xA7; 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation
of &#xA7; 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 &#xA7; 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 &#xA7; 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&#8217;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. &#x2014; 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&#8217;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 &#xA7; 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&#8217;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. &#x2014; 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 &#xA7; 19.2-169.2.

HISTORY: 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.