Courts would exclude some police statements linked to defendants’ diagnosed disabilities

Courts would exclude covered police statements when the required disability connection is established. This covers defendants diagnosed by a psychiatrist or clinical psychologist with autism, a developmental disability, or an intellectual disability. Cases under § 18.2-31 and acts of violence defined in § 19.2-297.1 are excluded. The judge must find it more likely than not that the disability directly and substantially influenced the decision to speak. That connection would be presumed if a properly given assessment shows a score at or below an average 14-year-old’s in everyday functioning relevant to deciding to speak with police. The assessment must be approved by the American Association on Intellectual and Developmental Disabilities. Prosecutors could present relevant, admissible evidence to counter the defense. The exclusion would cover statements made during pretrial interviews or before a lawyer is appointed.

Defense requests would follow court filing rules and requirements for sharing planned expert evidence. These rules cover defense requests to exclude statements under this section in circuit or district court. Circuit courts could allow late requests for a good reason and in the interest of justice. In district court, requests may be filed in writing before trial. The court must grant prosecutors a delay if they request one and show a good reason. Lawyers giving notice and planning expert testimony must share the expert’s report or a written summary, qualifications, and contact information. Circuit court requests must be written, filed, and shared with prosecutors at least seven days before trial. Hearings must occur at least three days before trial unless the defendant waives that timing.

Courts would restrict later use of defendants’ hearing and disclosed examination statements when defendants object. This covers statements at hearings under this section or during examinations disclosed under its expert evidence rules. The defendant must object to use of the statements. Statements could still be used to challenge the defendant’s credibility as a witness or in a prosecution for lying under oath. The protection would apply in criminal proceedings following the hearing.