3.13 Insanity Defense

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

3.13 INSANITY DEFENSE

The insanity defense must be distinguished from the competency issue. Competency refers to the defendant's mental condition at the time of trial and to whether he or she can understand the proceedings and assist in his or her defense. It is a question for the judge alone. The insanity issue is a jury question ²⁴² that focuses on the defendant's mental condition at the time of the alleged offense.

Virginia recognizes two tests for establishing the insanity defense: (i) the M'Naghten test, which requires that the defendant suffered from a disease or defect of the mind that rendered him incapable of understanding the nature and consequences of his act or that it was wrong; and (ii) the "irresistible impulse" test, which requires that the defendant, because of a disease or defect of the mind, was unable to restrain himself from performing the act charged. ²⁴³ Virginia courts have not recognized other forms of insanity, such as diminished capacity. ²⁴⁴

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In Herbin v. Commonwealth, ²⁴⁵ the Virginia Court of Appeals stated that

[b]ecause both the irresistible impulse test and the M'Naghten test require a showing of a disease of the mind, a defendant must present more than a scintilla of evidence of a mental disease in order to receive a jury instruction. Although lay testimony may support a plea of insanity, it is generally recognized that it is advisable to adduce expert testimony to better resolve such a complex problem.

While lay witnesses may testify to the attitude and demeanor of the defendant, "lay witnesses cannot express an opinion as to the existence of a particular mental disease or condition." . . .

"The weight of authority in this country recognizes an insanity defense that is based on a mental disease or defect produced by long-term substance abuse." At the same time, "evidence of mere narcotics addiction, standing alone and without other physiological or psychological involvement, raises no issue of such a mental defect or disease as can serve as a basis for the insanity defense."

In Downing v. Commonwealth, ²⁴⁶ the Virginia Court of Appeals found that

the defense of pathological [intoxication] . . . is merely a form of temporary insanity triggered by voluntary intoxication and . . . therefore, prohibited under Virginia law. Accordingly, the trial court did not err in holding, as a matter of law, that appellant would not be permitted to present evidence of pathological intoxication on the issue of insanity.

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The Virginia Supreme Court, in White v. Commonwealth, ²⁴⁷ explained that

[c]ertainly, we have permitted the use of the insanity defense when prolonged, habitual, and chronic alcohol or drug abuse has created a mental disease or defect. We adopted the common law distinction between temporary intoxication and permanent insanity long ago. "Drunkenness is no excuse for a crime." However, a mental disease or defect caused by chronic abuse of alcohol or drugs will support the defense of insanity. We have also commonly referred to this permanent condition as "settled insanity."

In reviewing a Virginia death penalty case, the Fourth Circuit Court of Appeals noted that "voluntary intoxication generally does not provide a defense unless it induces a permanent insanity." ²⁴⁸

Jones v. Commonwealth²⁴⁹ held that there is "no legal requirement that defendant enter a formal plea of 'not guilty by reason of insanity' in order to be permitted to present evidence of insanity." Section 19.2-254 of the Virginia Code identifies the proper pleas as not guilty, guilty, or nolo contendere. Thus, the trial judge erred in requiring the defendant to choose between theories of self-defense and insanity.

However, section 19.2-182.2 of the Virginia Code provides that "[w]hen the defense is insanity of the defendant at the time the offense was committed, the jurors shall be instructed, if they acquit him on that ground, to state the fact with their verdict." ²⁵⁰

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The next paragraph discusses preliminary evaluations of insanity, but at the trial itself other qualified professionals may render expert testimony regarding the diagnosis of a mental disorder. ²⁵¹

3.1301 Preliminary Evaluation. A defendant with adequate financial resources can obtain a private psychiatric evaluation. An indigent defendant must move the court for a preliminary sanity evaluation. ²⁵² This motion will be granted upon the court's finding of two facts: (i) that there is probable cause to believe that the defendant's sanity will be a significant factor in his or her defense ²⁵³ and (ii) that the defendant is indigent. After making the required findings, the court will appoint an expert to evaluate the defendant's sanity and, if appropriate, assist in formulating an insanity defense. The expert is chosen by the court rather than the defense, and the defense is entitled to only one expert. ²⁵⁴

The evaluation must be performed by at least one qualified mental health expert as defined by statute. ²⁵⁵ The evaluation must be performed on an outpatient basis at a mental health facility or in jail unless the court specifically finds that (i) outpatient services are unavailable or (ii) the results of the outpatient evaluation indicate that hospitalization for further evaluation is necessary. Upon either finding, the defendant may be hospitalized for such time as is necessary to perform an adequate evaluation, not to exceed 30 days. ²⁵⁶

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The court may order the commonwealth's attorney or defense counsel to provide to the sanity evaluators any information relevant to the evaluation, including (i) a copy of the warrant or indictment; (ii) the names and addresses of the commonwealth's attorney, the defense counsel, and the judge ordering the evaluation; (iii) information pertaining to the alleged crime, including statements made by the defendant to the police and transcripts of preliminary hearings; (iv) a summary of the reasons for the evaluation request; (v) any relevant psychiatric, psychological, medical, or social records; and (vi) a copy of the defendant's criminal record to the extent reasonably available. ²⁵⁷

Upon completing the evaluation, the evaluator must prepare a report within the time period designated by the court. The report, which may include statements by the defendant, is initially sent only to defense counsel and is protected by the lawyer-client privilege. ²⁵⁸ The full report, however, will be given to the commonwealth's attorney if the defense serves notice of an intent to present psychiatric or psychological evidence of insanity. ²⁵⁹ In such cases the defendant's statements are admissible only on the issue of his or her mental condition at the time of the alleged offense. ²⁶⁰

3.1302 Notice. Once a defendant has decided to rely upon an insanity defense supported by expert testimony, section 19.2-168 of the Virginia Code requires that the defendant give notice to the Commonwealth at least 60 days before trial. If the period between indictment and trial is less than 120 days, the notice must be given no later than 60 days after indictment. Section 19.2-168 applies only if the defendant intends to put in issue his or her sanity at the time of the crime and intends to present expert testimony in support. Section 19.2-168 is inapplicable if the defendant intends to present an insanity defense without expert testimony. ²⁶¹

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If notice is not given but the defendant proffers expert testimony on the insanity defense, the court may either grant the Commonwealth a continuance or bar the defendant's presentation of "such evidence." ²⁶² "Such evidence" seems necessarily to refer to the "testimony of an expert." Thus, a defendant who fails to give notice is not barred by section 19.2-168 from presenting evidence through lay witnesses.

3.1303 Evaluation by Commonwealth. Once the defense has given its section 19.2-168 notice, section 19.2-168.1 permits the Commonwealth to move for an evaluation of the defendant's sanity at the time of the alleged offense. ²⁶³ This evaluation will be conducted in accordance with the provisions of section 19.2-169.5. ²⁶⁴

The court must order the defendant to submit to the evaluation and must advise the defendant on the record in court that a refusal to cooperate with the Commonwealth's expert could result in exclusion of the defendant's expert evidence. ²⁶⁵ If the defendant refuses to cooperate with an evaluation requested by the Commonwealth, the court may admit evidence of such refusal or, in its discretion, bar the defendant from presenting expert testimony on the issue of sanity. ²⁶⁶

Kansas v. Cheever²⁶⁷ held that "where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant's evidence."

"Mental status" is a broader term than "mental disease or defect." . . . Mental-status defenses include those based on psychological expert evidence as to a defendant's mens rea, mental capacity to commit the crime, or ability...