Motion for 19.2-271.6 to be Limited to Sentencing

Admittedly, I'd rework this some - it was a bit of a rush job. I would at least add a paragraph or two about the rule of statutory interpretation that statutes passed by legislatures are to be read as congruent with the common law unless they are repugnant to each other or the new law specifically negates the old. Without putting too much into research right now I'd tell you to start with Blackstone.  

VIRGINIA:

IN THE
30TH CIRCUIT
SITTING IN
WISE COUNTY

COMMONWEALTH

v.

John Smith

Case no. F23-001


Motion in Limine
for
Mental Defect Evidence
Not Offered to Prove Insanity

 

COMES NOW THE COMMONWEALTH and moves this Honorable Court to limit the introduction of evidence pursuant to § 19.2-271.6 to the sentencing phase of the trial.

In support of this motion, the Commonwealth states as follows:

Statutory Requirements:

§ 19.2-271.6(B): In any criminal case, evidence offered by the defendant concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, [1] is relevant, [2] is not evidence concerning an ultimate issue of fact, and [3] shall be admitted if such evidence (i) tends to show the defendant did not have the intent required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence.”

Analysis:

By passing § 19.2-271.6, the Virginia General Assembly made proof of mental defect short of insanity relevant. However, it did not explicitly state at what point in the trial proof of mental defect would be admissible. By implication the General Assembly intends this to be a sentencing issue.

The General Assembly specifically included language stating that evidence of mental defect “is not evidence concerning the ultimate issue of fact.” This language means that the General Assembly’s determination that mental defect evidence short of insanity is “relevant” is either an invitation to nullification by the finder of fact or an indication that this statute is a sentencing statute to be applied during the sentencing hearing.

When a “jury could make no legitimate use of [the offered evidence] while deliberating on appellant's guilt or innocence, the exclusion of argument which could serve only to encourage inappropriate use of this information did not constitute an abuse of discretion” Walls v. Commonwealth, 38 Va. App. 273 (2002). “The possibility of nullification can never be legally cognizable prejudice because Virginia law does not permit juries to engage in the nullification.” Blowe v. Commonwealth, 72 Va.App. 457 (2020).

Like all government officials, the members of the General Assembly are entitled to “a presumption that public officials have acted correctly”,  Hladys v. Commonwealth, 235 Va. 145 (1988), and to “a presumption of regularity in the conduct of government business.” Cartwright v. Commonwealth Transp. Com'R, 270 Va. 58 (2005).

As the General Assembly has not passed a statute overturning the long established illegality of jury nullification, we must presume that as public officials our Senators and Delegates have acted correctly and in concordance with the established law. Thus, § 19.2-271.6 cannot be a call for nullification. Therefore, the General Assembly has shown a clear intent that any evidence of mental defect offered under this statute is a sentencing issue that cannot be presented during the guilt phase of the trial.


WHEREFORE, the Commonwealth moves that all evidence introduced under § 19.2-271.6 be limited to the sentencing hearing of the trial.


                            I ask for this,


                            ____________________
                            Ken Lammers Jr,
                            Assistant Commonwealth Attorney





CERTIFICATION

I certify that a copy of this motion was given by hand to Jane Doe, counsel for the defendant on 12 December 2042.



                            ____________________
                            Ken Lammers Jr,
                            Assistant Commonwealth Attorney