Compentency/ Insanity 


If the court finds that the defendant 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 is qualified by training and experience in forensic evaluation. Competency evaluation, report, determination. Va. Code Ann. § 19.2-169.1



Special Rules



Death Penalty 

Upon motion, the court may appoint an expert to gather information concerning the defendant's history, character, or mental condition, including (i) whether the defendant acted under extreme mental or emotional disturbance at the time of the offense; (ii) whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was significantly impaired at the time of the offense; and (iii) whether there are any other factors in mitigation relating to the history or character of the defendant or the defendant's mental condition at the time of the offense. Va. Code Ann. § 19.2-264.3:1.2


The definition of “mentally retarded” for purposes of death penalty litigation is: 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. The defendant bears the burden of proving that he is mentally retarded by a preponderance of the evidence. Decided by the jury in a jury trial and judge in a bench trial. Specifies what factors should be looked at to evaluate intellectual functioning, adaptive behavior, and developmental origin.Va. Code Ann. § 19.2-264.3:1.1

If the defendant cannot afford an expert to evaluate, the court must appoint one.  Va. Code Ann. § 19.2-264.3:1.2