Virginia Supreme Court Permits SVP to Rescind Refusal to Cooperate; General Assembly Establishes Procedure

Hood v. Commonwealth, 280 Va. 526, 701 S.E.2d 421 (2010)
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On November 4, 2010, the Virginia Supreme Court reversed the finding of the Pittsylvania County Circuit Court and remanded for a new trial a case decided under the Sexually Violent Predator Act. The Supreme Court determined that the circuit court’s decision that it had no discretion to permit a prisoner to rescind his refusal to cooperate with the Commonwealth’s mental health expert during the assessment examination violated the respondent’s procedural due process rights. The Court held that Virginia Code § 37.2-901 permitted, but did not require, the trial court to admit evidence of the respondent’s refusal and bar the respondent from introducing his own expert evidence. Virginia Code § 37.2-907(A) relating to the appointment of experts must be read in conjunction with § 37.2-901, even though it states that if the respondent refuses to cooperate with the examination under § 37.1-901, any expert appointed shall not be permitted to testify at trial nor any report be admissible. The Supreme Court held that due process requires the trial court to consider the circumstances surrounding the respondent’s refusal to cooperate and whether the respondent is currently ready to cooperate. The trial court thus has discretion as to what limits to place on admissibility of evidence. In this case, the respondent refused to cooperate before counsel was appointed to represent him and he was currently expressing a desire to cooperate. Virginia appears to be the only state that has such an evidentiary provision in its SVP Act.

In response to this decision, the General Assembly passed House Bill 1698 (Athey) and Senate Bill 1275 (Obenshain) on February 23, 2011, establishing procedures surrounding the respondent’s decision to rescind any refusal to cooperate. The respondent may rescind his refusal to cooperate and elect to cooperate with the mental health examination within 21 days of retention or appointment of counsel. Counsel for the respondent must provide written notice of the respondent’s election to cooperate to the court and the attorney for the Commonwealth within 30 days of the appointment or retention of counsel. The probable cause hearing is then postponed until 30 days after receipt of the mental health examiner’s report. If the respondent thereafter refuses to cooperate with the mental health examination, the court is required to admit evidence of such failure or refusal and to bar the respondent from introducing his own expert evidence. These bills are awaiting signature by the Governor.

Found in DMHL Volume 30 Issue 2