HB 1882 — Capital cases; replacing certain terminology.

A.

As used in this section and § 19.2-264.3:1.2, the following definition applies:

"Mentally retarded" "Intellectual disability" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social and practical adaptive skills.

B.

Assessments of mental retardation intellectual disability under this section and § 19.2-264.3:1.2 shall conform to the following requirements:

1.

Assessment of intellectual functioning shall include administration of at least one standardized measure generally accepted by the field of psychological testing and appropriate for administration to the particular defendant being assessed, taking into account cultural, linguistic, sensory, motor, behavioral and other individual factors.

All such measures shall be reported as a range of scores calculated by adding and subtracting the standard error of measurement identified by the test publisher to the defendant's earned score.

Testing of intellectual functioning shall be carried out in conformity with accepted professional practice, and whenever indicated, the assessment shall include information from multiple sources.

The Commissioner of Behavioral Health and Developmental Services shall maintain an exclusive list of standardized measures of intellectual functioning generally accepted by the field of psychological testing.

2.

Assessment of adaptive behavior shall be based on multiple sources of information, including clinical interview, psychological testing and educational, correctional and vocational records.

The assessment shall include at least one standardized measure generally accepted by the field of psychological testing for assessing adaptive behavior and appropriate for administration to the particular defendant being assessed, unless not feasible.

In reaching a clinical judgment regarding whether the defendant exhibits significant limitations in adaptive behavior, the examiner shall give performance on standardized measures whatever weight is clinically appropriate in light of the defendant's history and characteristics and the context of the assessment.

3.

Assessment of developmental origin shall be based on multiple sources of information generally accepted by the field of psychological testing and appropriate for the particular defendant being assessed, including, whenever available, educational, social service, medical records, prior disability assessments, parental or caregiver reports, and other collateral data, recognizing that valid clinical assessment conducted during the defendant's childhood may not have conformed to current practice standards.

C.

In any case in which the offense may be punishable by death and is tried before a jury, the issue of mental retardation intellectual disability, if raised by the defendant in accordance with the notice provisions of subsection E of § 19.2-264.3:1.2, shall be determined by the jury as part of the sentencing proceeding required by § 19.2-264.4.

In any case in which the offense may be punishable by death and is tried before a judge, the issue of mental retardation intellectual disability, if raised by the defendant in accordance with the notice provisions of subsection E of § 19.2-264.3:1.2, shall be determined by the judge as part of the sentencing proceeding required by § 19.2-264.4.

The defendant shall bear the burden of proving that he is mentally retarded a person with intellectual disability by a preponderance of the evidence.

D.

The verdict of the jury, if the issue of mental retardation intellectual disability is raised, shall be in writing, and, in addition to the forms specified in § 19.2-264.4, shall include one of the following forms:

(1) 1.

"We the jury, on the issue joined, having found the defendant guilty of (here set out the statutory language of the offense charged), and that the defendant has proven by a preponderance of the evidence that he is mentally retarded a person with intellectual disability, fix his punishment at (i) imprisonment for life or (ii) imprisonment for life and a fine of $__________.

Signed ____________________ foreman" or (2) 2.

"We the jury, on the issue joined, having found the defendant guilty of (here set out the statutory language of the offense charged) find that the defendant has not proven by a preponderance of the evidence that he is mentally retarded a person with intellectual disability.

Signed ____________________ foreman" § 19.2-264.3:1.2.

Expert assistance when issue of defendant's intellectual disability relevant to capital sentencing.

A.

Upon (i) motion of the attorney for a defendant charged with or convicted of capital murder and (ii) a finding by the court that the defendant is financially unable to pay for expert assistance, the court shall appoint one or more qualified mental health experts to assess whether or not the defendant is mentally retarded a person with intellectual disability and to assist the defense in the preparation and presentation of information concerning the defendant's mental retardation intellectual disability.

The mental health expert appointed pursuant to this section shall be (a) a psychiatrist, a clinical psychologist or an individual with a doctorate degree in clinical psychology, (b) skilled in the administration, scoring and interpretation of intelligence tests and measures of adaptive behavior and (c) qualified by experience and by specialized training, approved by the Commissioner of Behavioral Health and Developmental Services, to perform forensic evaluations.

The defendant shall not be entitled to a mental health expert of the defendant's own choosing or to funds to employ such expert.

B.

Evaluations performed pursuant to subsection A may be combined with evaluations performed pursuant to § 19.2-169.1, 19.2-169.5, or 19.2-264.3:1.

C.

The expert appointed pursuant to subsection A shall submit to the attorney for the defendant a report assessing whether the defendant is mentally retarded a person with intellectual disability.

The report shall include the expert's opinion as to whether the defendant is mentally retarded a person with intellectual disability.

D.

The report described in subsection C shall be sent solely to the attorney for the defendant and shall be protected by the attorney-client privilege.

However, the Commonwealth shall be given a copy of the report, the results of any other evaluation of the defendant's mental retardation intellectual disability and copies of psychiatric, psychological, medical or other records obtained during the course of the evaluation, after the attorney for the defendant gives notice of an intent to present evidence of mental retardation intellectual disability pursuant to subsection E.

E.

In any case in which a defendant charged with capital murder intends, in the event of conviction, to present testimony of an expert witness to support a claim that he is mentally retarded a person with intellectual disability, he or his attorney shall give notice in writing to the attorney for the Commonwealth, at least 21 days before trial, of his intention to present such testimony.

In the event that such notice is not given and the defendant tenders testimony by an expert witness at the sentencing phase of the trial, then the court may, in its discretion, upon objection of the Commonwealth, either allow the Commonwealth a continuance or, under appropriate circumstances, bar the defendant from presenting such evidence.

F.

1.

If the attorney for the defendant gives notice pursuant to subsection E and the Commonwealth thereafter seeks an evaluation concerning the existence or absence of the defendant's mental retardation intellectual disability, the court shall appoint one or more qualified experts to perform such an evaluation.

The court shall order the defendant to submit to such an evaluation, and advise the defendant on the record in court that a refusal to cooperate with the Commonwealth's experts could result in exclusion of the defendant's expert evidence.

The qualification of the experts shall be governed by subsection A.

The attorney for the Commonwealth shall be responsible for providing the experts the information specified in subsection C of § 19.2-169.5.

After performing their evaluation, the experts shall report their findings and opinions and provide copies of psychiatric, psychological, medical or other records obtained during the course of the evaluation to the attorneys for the Commonwealth and the defense.

2.

If the court finds, after hearing evidence presented by the parties, out of the presence of the jury, that the defendant has refused to cooperate with an evaluation requested by the Commonwealth, the court may admit evidence of such refusal or, in the discretion of the court, bar the defendant from presenting his expert evidence.

§ 19.2-264.3:3.

Limitations on use of statements or disclosure by defendant during evaluations.

No statement or disclosure by the defendant made during a competency evaluation performed pursuant to § 19.2-169.1, an evaluation performed pursuant to § 19.2-169.5 to determine sanity at the time of the offense, treatment provided pursuant to § 19.2-169.2 or § 19.2-169.6, a mental condition evaluation performed pursuant to § 19.2-264.3:1 or a mental retardation an intellectual disability evaluation performed pursuant to § 19.2-264.3:1.2, and no evidence derived from any such statements or disclosures may be introduced against the defendant at the sentencing phase of a capital murder trial for the purpose of proving the aggravating circumstances specified in § 19.2-264.4.

Such statements or disclosures shall be admissible in rebuttal only when relevant to issues in mitigation raised by the defense.

2.

That it is the expressed intent of the General Assembly that the provisions of this act serve only to reflect a change in terminology approved and used by experts in the field to describe the identical phenomenon, as stated by the U.S.

Supreme Court in Hall v.

Florida, 134 S.

Ct.

1986 (2014), and do not affect the meaning or applicability of the existing definition or case law utilizing the existing definition.