What Is Virginia Code § 19.2-271.6?

Virginia Code § 19.2-271.6 is a criminal procedure statute that allows a defendant to introduce evidence of a mental condition to show that they lacked the intent required to commit the charged offense. Enacted by the General Assembly in 2021, the law created a middle path between a full insanity defense and no mental health evidence at all.

Before this statute existed, Virginia courts generally allowed evidence of a defendant’s mental state only in the context of a Not Guilty by Reason of Insanity (NGRI) plea — a high bar requiring proof that the defendant could not distinguish right from wrong or could not control their behavior at the time of the offense. Section 19.2-271.6 does not replace the insanity defense; it adds a separate, more accessible avenue for using mental health evidence to attack a specific element of the crime: intent.

What Does the Statute Actually Say?

The law is organized into several subsections, each addressing a different piece of how this evidence works in practice.

**Subsection A** defines the key terms. “Mental illness” means a disorder of thought, mood, perception, or orientation that significantly impairs judgment or the capacity to recognize reality. “Developmental disability” and “intellectual disability” carry the same meanings assigned to them in Virginia Code § 37.2-100.

**Subsection B** is the heart of the statute. It provides that evidence of a defendant’s mental condition at the time of the alleged offense — including expert testimony — is relevant and must be admitted if it (1) tends to show the defendant lacked the intent required for the charged offense, and (2) is otherwise admissible under ordinary evidence rules. To rely on this provision, the defendant has to show the condition existed at the time of the offense and meets the diagnostic criteria for a mental illness, a developmental or intellectual disability, or autism spectrum disorder as defined in the most recent DSM.

This subsection also sets out strict **notice requirements**. A defendant who intends to use this kind of evidence must notify the Commonwealth’s Attorney in writing:

– At least **60 days** before trial in circuit court
– At least **21 days** before trial in general district court or juvenile and domestic relations district court
– At least **14 days** before trial if the trial date falls within 21 days of the last court appearance

If a defendant fails to give proper notice and tries to introduce this evidence anyway, the court has discretion to grant the Commonwealth a continuance or bar the evidence entirely. Notably, any continuance granted for this reason does not count against the defendant’s speedy trial clock under Virginia Code § 19.2-243. Defendants relying on expert testimony must also turn over the expert’s written report (or a summary of the expected testimony) along with the expert’s qualifications and contact information.

**Subsection C** requires the defense to let the Commonwealth inspect, copy, or photograph any written reports from physical or mental examinations connected to the case — though statements made by the accused during such an examination cannot be used by the prosecution in its case-in-chief.

**Subsections D through G** round out the framework: the Commonwealth may introduce rebuttal evidence, courts retain authority to issue emergency custody orders, the statute does not alter the separate requirements for an insanity defense, and — critically — **the law cannot be used to introduce evidence of voluntary intoxication**.

How Is This Different from an Insanity Defense?

This is one of the most common points of confusion, and it matters for anyone facing charges in Williamsburg, James City County, York County, or Newport News.

§ 19.2-271.6 Mental Condition Evidence | Insanity Defense (NGRI)
**Goal** | Negate intent for the specific charge | Full defense to criminal responsibility
**Standard** | Diagnosable condition under DSM criteria | Inability to distinguish right from wrong or control behavior
**Outcome if successful** | Acquittal or reduced charge based on lack of intent | Commitment to state custody for treatment
**Expert qualification bar** | Less stringent | Governed by separate, more demanding requirements under § 19.2-169.5

A defendant does not need to plead NGRI to use mental condition evidence under this statute, and doing so does not carry the same collateral consequence of potential civil commitment that comes with a successful insanity defense.

Why This Statute Matters in Practice

Because intent is an element the Commonwealth must prove beyond a reasonable doubt in most criminal offenses, mental condition evidence admitted under this section can create genuine reasonable doubt without requiring the defense to meet the demanding insanity standard. That makes it a significant tool in cases involving:

– Assault and battery charges
– Threats or communications offenses
– Property crimes where intent is contested
– Cases involving defendants with documented psychiatric diagnoses, autism spectrum disorder, or intellectual disabilities

The notice deadlines are unforgiving, though. Missing the 60-day circuit court window (or the shorter district court windows) can mean the difference between a jury hearing critical evidence and that evidence being excluded altogether. This is why early evaluation — ideally at the moment a mental health issue is identified — is essential to preserving the defense.

Talk to a Williamsburg-Area Criminal Defense Attorney

If you or a loved one is facing criminal charges in Williamsburg, James City County, York County, or Newport News, and a mental health condition may have played a role in the alleged offense, the notice deadlines under Virginia Code § 19.2-271.6 start running early. An experienced Hampton Roads criminal defense attorney can evaluate whether this statute applies to your case and make sure the required notice and expert disclosures are filed on time.

This article is provided for general informational purposes about Virginia law and does not constitute legal advice for any particular situation. If you are facing a criminal matter in Williamsburg, James City County, York County, Newport News, or elsewhere in Hampton Roads, speak with a criminal defense attorney promptly to discuss your specific circumstances.

FAQ

Q: What is Virginia Code § 19.2-271.6?

A: It’s a Virginia statute that allows criminal defendants to introduce evidence of a mental condition — such as mental illness, developmental disability, intellectual disability, or autism spectrum disorder — to show they lacked the intent required for the charged offense.

Q: Is this the same as pleading insanity in Virginia?

A: No. An insanity defense (NGRI) requires proving the defendant couldn’t distinguish right from wrong or control their behavior, and can result in commitment to state custody. Section 19.2-271.6 is narrower — it targets whether the defendant had the required criminal intent — and doesn’t require an insanity plea.

Q: How much notice does a defendant have to give before using this evidence?

A: At least 60 days before a circuit court trial, 21 days before a general district or juvenile and domestic relations district court trial, or 14 days if the trial is set within 21 days of the last court date.

Q: Can this statute be used for voluntary intoxication?

A: No. The statute expressly states it cannot be used to introduce evidence of voluntary intoxication.

Q: What happens if a defendant doesn’t give proper notice?

A: The court has discretion to grant the Commonwealth a continuance or to bar the defendant from presenting the mental condition evidence altogether.

Drug Possession vs Drug Residue in Virginia