Judges could exclude some defendants’ statements to law enforcement

A court would keep certain statements out of a criminal case if it finds the defendant’s disability strongly affected the choice to speak with law enforcement. This applies to statements the defendant made to law enforcement during a pretrial interview or before counsel was appointed. It excludes cases involving aggravated murder or an act of violence as defined in Virginia law. The defendant must have a diagnosis of autism spectrum disorder, a developmental disability, or an intellectual disability from a psychiatrist or clinical psychologist. A judge must find, by the greater weight of the evidence, that the disability had a direct and substantial connection to the decision to speak. The connection is presumed if an approved assessment finds adaptive functioning at or below the average score for a 14-year-old in a domain that affects the decision to speak. The rule applies to statements made during a pretrial interview or before counsel is appointed.

A defendant seeking to exclude a statement would need to raise the issue by motion or objection, and the bill sets rules for hearings and expert information. These procedures apply when a defendant asks to exclude a statement under this section. In circuit court, the request must be in writing and notice must reach the Commonwealth’s attorney at least seven days before trial; the hearing must be held at least three days before trial unless the defendant waives that period. A circuit court may allow a later request for good cause and in the interest of justice. In district court, the request may be written before trial; the court must grant the Commonwealth a continuance for good cause shown if it asks. If the defense plans to use an expert, it must provide the expert’s report or a written summary of expected testimony, along with the expert’s qualifications and contact information. Statements the defendant makes at the hearing or during a disclosed examination generally could not be used against the defendant later, except to challenge credibility or in a perjury case. The Commonwealth may offer relevant evidence in response. In circuit court, written notice is due at least seven days before trial and the hearing is due at least three days before trial, unless the defendant waives that period.