Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
54 Cards in this Set
- Front
- Back
|
Are unanimous verdicts necessary in Virginia?
|
Yes
|
|
|
Are juries of less than 12 permitted for nonfelonious offenses?
|
Yes
|
|
|
Jurisdiction of the Supreme Court?
|
Appellate, except for original habeas corpus petitions. All criminal cases in which death penalty is imposed are automatically reviewed by Supreme Court. All petitions for writ of habeas corpus in cases where the death penalty is imposed MUST be brought in Supreme Court.
|
|
|
Is there a right of criminal appeal to the Court of Appeals?
|
No, but persons convicted of a crime may petition for discretionary review.
|
|
|
Are interlocutory appeals in criminal cases permitted?
|
No, other than appeals permitted to the Commonwealth in certain pretrial, pre-jeopardy rulings.
|
|
|
When is there no appeal to the Supreme Court available?
|
traffic infractions, misdemeanor cases where no incarceration is imposed, cases originating before any administrative agency or Industrial Commission of Virginia, cases relating to family matters, and pretrial appeals by Commonwealth in felony cases and cross-appeals by defendant. However, if d is convicted, d may request reconsideration of the pretrial appeal issue by the court of appeals or the VA sup. ct.
|
|
|
Can Court of appeals issue injunctions and writs?
|
Yes, , writs include writs of mandamus, prohibition and habeas corpus. Only the circuit court that entered the original judgment of conviction, however, may issue a writ of habeas corpus for a person held under criminal process.
|
|
|
When does VA supreme Court review court of appeals decisions?
|
Substantial constitutional question or an issue of significant precedential value. Review is by certification or where ct. of appeals decision involves above criteria.
|
|
|
Circuit Court jurisdiction
|
over felonies and indictments for misdemeanors, and appeallate jurrisdiction in the form of de novo review of misdemeanors tried in a court not of record
|
|
|
GDC jurisdiction
|
original jurisdiction over misdemenaors. Authority to issue warrants, summonses, and subpoeanas. Juvvenile and domestic relations district courts also are included in this category, but these courts have special jurisdiction.
|
|
|
Magistrates have authority to what
|
authority to issue arrest and search warrants, determine bail, or commit an arrestee to jail.
|
|
|
Is there a right to counsel for a grand jury?
|
No.
|
|
|
Rights of the accused when charged with crime punishable by death or confinement?
|
Must be brought before a judge of a court not of record on the first day on which the court sits after the person is charged to be informed of his right to counsel. The accused must be allowed a reasonable time to employ counsel.
|
|
|
When and under what condition can right to counsel be waived?
|
Any time, as long as the waiver is voluntary and intelligent, advice of counsel is NOT required for the waiver to be valid, and the waiver may be oral.
|
|
|
SOL on felonies?
|
Generally none
|
|
|
SOL on Misdemeanors
|
1 year (tolled while fleeing)
|
|
|
Can defense of sol be waived?
|
Failure to raise before verdict or judgment waives SOL defense.
|
|
|
General rule and exception to satisfaction and discharge
|
If victim of an assault and battery or other misdemeanor appears and acknowledges in writing satisfaction received for injury, Ct. may dismiss prosecution. BUT cannot do so if the offense was by or upon any law enforcement officer, riotously, against a family or household member, or with intent to commit a felony.
|
|
|
Extradition
|
Upon written demand of executive of state, VA governor must have arrested and delivered any person charged by that state with the commission of crime, provided the demand alleges the accused was present in demanding state at time of alleged crime and fled, or alleges that accused committed an act in state, or third state, intentionally resulting in crime in demanding state.
|
|
|
When can a warrant issue?
|
Authorized person may do so based upon a complaint supported by affidavit, if satisfied from the complaint that probable cause exists. No general search warrant may be issued, and affidavit must describe places, things or persons to be searched.
|
|
|
How long to execute warrant after issuance?
|
15 days
|
|
|
Who may issue arrest warrant?
|
judge, magistrate, clerk, after examining complainant and other witnesses under oath and thereafter determining probably cause exists
|
|
|
Arrest warrant must:
|
1 - describe offense charged with reasonable certainty; 2- specifically name or describe the accused; 3 - be directed to the appropriate officers; 4 - Command the person named be arrested and brought before appropriate court; and be signed be magistrate
|
|
|
When may an officer arrest without a warrant?
|
when any person has committed any crime in his presence or whom the officer reasonably suspects has committed a crime not in the officer's presence. (
|
|
|
Procedure following arrest with warrant
|
She must be brought before judicial official and the latter may proceed directly to trial if (1) the official is a judge of a district court having jurisdiction to try to accused; 2 offense is misdemeanor; and 3 accused consents and the commonwealth does not object
|
|
|
Procedure following arrest without warrant
|
must be brought before judicial officer who will either issue warrant or release
|
|
|
Does an accused charged with a felony have a right to preliminary hearing?
|
Yes, unless an indictment is returned prior to the preliminary hearing or the charges are dismissed or nolle prosequied. Failure to adhere to this requirement is reversible error.
|
|
|
When is discovery available?
|
Only in felony prosecutions. Commonwealth had no right to discovery where accused does not make motion for discovery or withdraws motion already made. Neither side needs to disclose name of witnesses to crime or who will be testifying.
|
|
|
Are confessions resulting from illegal arrests or searches admissible?
|
No
|
|
|
Are confessions subsequent to involuntary confessions presumed tainted?
|
Yes
|
|
|
May a defendant take the stand to testify regarding voluntariness of confession without thereby waiving 5th amendment privilege against self-incrimination?
|
Yes
|
|
|
For what purpose can evidence regarding refusal to submit to blood alcohol tests be admitted?
|
Explaining absence of chemical test
|
|
|
Types of Grand Juries
|
1 - Regular; 2 - Special; 3 - Multijurisdictional grand jury
|
|
|
Discuss regular grand jury
|
not less than 5 or more than nine and indictments are found or presentments are made by at least four members concurring in the finding. Inquires into all felonies, misdemeanors, and violations of penal laws.
|
|
|
Bill of Indictment
|
Prepared by attorney for commonwealth for regular grand jury. If sufficient probable cause indictment returned a "true bill". (Accusatorial grand jury)
|
|
|
Special Grand Jury
|
not less than nine or more than 11 - investigates and makes reports on crimina activity in the community or misdeasance of governmental authority by agencies or officials. The report is filed with the court and then the jury is discharged. Investigative Grand Jury.
|
|
|
Define Presentment
|
written accusation of crime, prepared and returned by regular grand jury from their own knowledge or observation, without bill of indictment laid before them
|
|
|
Define Indictment
|
An indictment is a written accusation of crime, prepared by attorney for the Commonwealth and returned a True Bill upon the oath or affirmation of legally impaneled regular grand jury.
|
|
|
Define Information
|
written accusation of crime, or a complaint for forfeiture of property or money, or for imposition of a penalty, prepared and presented by a competent public official upon his oath of office
|
|
|
When is indictment necessary?
|
Person may not be tried for a felony unless an indictment or presentment first found or made by the roper grand jury unless waived, in which event he may be tried by warrant or information. Waived if not raised before trial.
|
|
|
Speedy Trial Statute
|
provides that accused is forever discharged from prosecution if (1) he is in custody and no trial is commenced within fivem onths of preliminary hearing or (2) he is not in custody and no trial is commenced within 9 months of preliminary hearing. A trial is deemed to commence when jeopardy attaches or when a plea of guilty or nolo contendere is entered.
|
|
|
Selecting Jury in Felony Case
|
20 persons free from exception selected for venire, and both sides are allowed four peremptory challenges to establish jury of 12
|
|
|
Jury in Misdemeanor cases
|
13 persons free from exception are selected for Venire and both sides are allowed 3 peremptory challenges to establish jury of seven.
|
|
|
Is failure of the court to exclude a venireman who should be excluded reversible error?
|
Yes, even when venireman is excluded by defendant's use of peremptory challenge
|
|
|
General venue rule
|
Venue is proper in county or city where the crime was committed. For other offenses (outside of state, forgery) venue is proper in any place touched by the crime (where stolen property was brought, where body was found, where forgery took place)
|
|
|
Effect of guilty plea on appeal?
|
Waiver of defenses on appeal, except regarding volutnariness, lack of jurisdiction, IEC, breach of plea bargain.
|
|
|
In va, when is it not double jeopardy
|
hung jury, mistrial declared for manifest necessity, acquitted due to variance between allegations and proof, or proesecution is for conspiracy after some of the alleged over acts of that conspiracy have already been prosecuted
|
|
|
Can an accused's wife be compelled to testify
|
No, unless prosecution is for offense committed by one against the other or minor child of either; 2 either is charged with forgery of other's signature; or (3) any proceeding relating to violation of laws pertaining to criminal sexual assault.
|
|
|
Appeal from GDC
|
absolute right within 10 days from conviction, whether or not conviction upon plea of guilty.
|
|
|
Right to counsel for writ of habeas corpus?
|
No.
|
|
|
Grounds for writ of habeas corpus
|
May raise deprivation of constitution rights, but lacks standing to raise nonjurisdiction defects which, although he had full opportunity, he failed to assert at trial and upon appeal of conviction.
|
|
|
Writ of Innocence
|
VA sup ct. may issue based on new testing of biological evidence that exculpates a person convicted of a serious felony.
|
|
|
If habeas relief is granted, does commonwealth have any rights?
|
May retry petitioner on original charges after relief granted
|
|
|
Jurisdiction of JDRCT (Juvenile and Domestic Relations Court)
|
exclusive original jurisdiction over matters of juveniles under 18 accused of committing delinquent acts that would be crimes if committed by an adult. Also have jurisdiction to try misdemeanors involving family and household memebrs who commit crimes against each other and to cundct preliminary hearings in felony cases involving family and household members where victim is less than 18
|
