                                 CODE OF VIRGINIA

TRIAL; RIGHT TO TRIAL BY JURY; STANDARD OF PROOF; DISCOVERY (§ 37.2-908)

A. Within 120 days after the completion of the probable cause hearing held
pursuant to &#xA7; 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 &#xA7;&#xA7; 37.2-814 through 37.2-819, or certified for
admission pursuant to &#xA7; 37.2-806.
			If he meets the qualifications set forth in subsection B of &#xA7; 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&#8217;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&#8217;s present mental condition; (vi) the
respondent&#8217;s disciplinary record and types of infractions he may have
committed while incarcerated or hospitalized; (vii) the respondent&#8217;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 &#xA7; 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
&#xA7; 19.2-174.1 and Chapter 11 (&#xA7; 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 &#xA7; 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&#8217;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.

HISTORY: 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.