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213 Cards in this Set
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- Back
- 3rd side (hint)
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The Supreme Court is an appellate court except for what |
Original habeas corpus petitions all petitions for a writ of habeas corpus in case it’s where the death penalty is imposed must be brought in the supreme court |
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Is there an appeal of right in Virginia to the Court of Appeals in criminal cases |
No there is no appeal of right to the court of appeals and criminal cases but people convicted of crimes may petition the court of appeals for discretionary review |
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Does Virginia permit interlocutory appeals in criminal cases |
The only interlocutory appeals permitted in the Commonwealth are in certain pre-trial and pre-Jeopardy rulings |
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What cases cannot be appealed to the Virginia supreme court |
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 the Commonwealth in felony cases and cross appeals by a defendant. However if the defendant is convicted the defendant may request reconsideration of the pretrial appeal issue by the court of appeals for the Virginia Supreme Court |
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What is the authority of the Virginia court of appeals |
Authority to affirm reverse modify etc. circuit court decisions or an award of the industrial commission to punish for contempt to issue and junctions and roots 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 |
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What’s the appeals process in Virginia |
In a non-death penalty case a defendant may appealhis conviction directly to the Virginia Court of Appeals if he was found guilty in the circuit court |
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How long after the Virginia circuit court convicted a defendant does the defendant have to file notice of appeal |
30 days |
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How long after the Court of Appeals has received the record of the defendants trial does the defendant have To file his position of appeal |
40 days |
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Under what circumstances will the Virginia supreme court review a decision of the Court of Appeals |
If the decision involves a substantial constitutional question or an issue of significant precedential value. Supreme court review is by certification or where the court of appeals decision involves a substantial constitutional question. |
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In a criminal case can the Commonwealth of Virginia petition the supreme court for a writ of error to the court of appeals |
Yes except when the decision of the Court of Appeals is made final by statute in other words traffic and misdemeanor cases in certain pre-trial rulings made a felony cases |
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What are the courts of record in each circuit and city of the first class |
Circuit courts they have original jurisdiction over Felonies and indictments for misdemeanors and appellate jurisdiction in the form of De Novo review of misdemeanors tried in a quart not of record |
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What are the responsibilities of the district courts |
District courts or courts not of record which have original jurisdiction over misdemeanors. The district court judge has authority to issue warrants, summonses and subpoenas, juvenile and domestic relations district courts are also included in this category but these courts have special jurisdiction |
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What is the authority of magistrates in Virginia |
To issue arrest and search warrants determine bail or commit and a suspect to jail |
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When and where must an accused charged with a crime punishable by death or confinement be brought before a judge |
The defendant must be brought before a judge or 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. Accused must be allowed a reasonable time to employ counsel |
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What is the process for appointment of counsel by the court if the accused is indigent |
The court will appoint counsel compensated by fixed amount who will represent the accused in all proceedings against her including appeal until relieved or replaced |
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What is the process for waiver of right to counsel |
The accused may waive counsel if accused is competent and waiver is voluntary and intelligently made. The court must ascertain by oral examination whether the accused desires to waive and if so provide her with a statement to that effect to sign. If accused refuses to sign the statement the refusal is deemed a waiver of right to counsel |
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When can the defendant waive counsel |
At any time even after representation has been obtained as long as waiver is voluntary and intelligent. Advice of counsel is not required for waiver to be valid. The waiver may be oral. The waiver may be oral |
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When do statutes of limitations begin to run in criminal cases |
They begin to run upon commission of the crime and cease to run upon commencement of prosecution. They are tolled during the time the accused is fleeing from justice. |
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Are there statutes of limitations for Felonies |
Generally no |
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Are there statutes of limitation for continuing offenses |
No |
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Are there statutes of limitations for misdemeanors |
Actions for misdemeanors need to be brought within one year |
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What is the effect of failure to raise the defense of statute of limitations in a criminal case |
Failure to raise the defense before verdict or judgment is a waiver of the defense |
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How can assault and battery cases be discharged before disposition by the court |
If assault and battery victim or other misdemeanor having a civil remedy appears before the court and acknowledges in writing that she has received the satisfaction for the injury the court may supersede the commitment, discharge the recognizance, or dismiss the prosecution that has been instituted |
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Does the court treat differently a recidivist family member who previously has been convicted of assault against another family or household member |
The court does treat this defendant differently and is not authorized to dismiss the charge if the defendant has previously been convicted of a similar offense or how to charge similarly dismissed and discharged or nolle prossed |
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In the interest of prevention of crime how does the court treat a person who threatens to kill injure or commit violence against another’s property or trespass |
The court will require the defendant to give a recognizance to keep the peace for a period not to exceed one year. Such recognizance will be required following a hearing before a judge if accused refuses to give recognizance he will be jail |
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What is recognizance |
A bond by which a person under takes before a court or magistrate to observe some condition especially to appear when summoned |
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What is the uniform law that Virginia has adopted which governs extradition |
The uniform criminal extradition act |
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What is the extradition procedure |
Upon written demand of the executive of another state, the governor must have arrested and delivered any person charged by that state with a crime, provided the demand alleges the accused was present in the demanding state at the time of the alleged crime and there after fled the state, or alleges that the accused committed an act in the state or in a third state intentionally resulting in a crime in the demanding state |
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What are the elements of a proper search warrant |
Search warrant may be issued for the search of specified places, things, or persons and may include among things to be seized, minor evidence. Seizures however may go beyond the things specified in the warrant. |
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What’s the procedure for issuance of a warrant |
Any person authorized to issue a warrant may do so based upon a complaint supported by affidavit If he is satisfied from the complaint that probable cause exists. No general search warrant may be issued, and the affidavit must describe places things or persons to be searched |
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What is the test of informant information which is used to support an application for a warrant |
To support probable cause the affidavit is tested by the totality of the circumstances test and which reliability and credibility of the informant and his basis of knowledge or intertwined consideration |
To support probable cause the affidavit is tested by the totality of the circumstances test and which reliability and credibility of the informant and his basis of knowledge or intertwined consideration |
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How long Do police have to execute a warrant before it becomes avoid void |
15 days |
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Who is anyone may conduct a search of a place thing or person without a valid search warrant |
Generally no one except any officer empowered to enforce the game laws or the marine or fisheries laws may search a common carrier storage room or warehouse |
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Does the fourth amendment apply to searches by parties other than government officials |
No |
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How quickly must a motion to suppress illegally seized evidence be made to avoid the possibility of waiver |
The motion must be timely made to avoid the possibility of waiver. Denial of the motion is not appealable without final judgment on the merits |
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What is Virginia’s strip search limitation |
No person in custodial arrest for a traffic in fraction or certain other crimes may be strip-searched unless there is reasonable cause to believe the individual is concealing a weapon. Strip searches must be performed by persons of the same sex as the person searched |
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What is the exception to the strip search statute |
The strip search statute does not apply when the person is taken into custody or amended to a law enforcement officer pursuant to a circuit or district court order |
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What is the soap shower exception to the strip search statue |
The sheriff or regional jail superintendent may require that inmates take hot water and soap showers and be subjected to visual inspection upon assignment to the general population area of the jail or upon determination by the sheriff or regional Jail superintendent that the inmate must be held at the jail by reason of his inability to post bond after opportunity to do so |
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What is the rule on seizure and forfeiture and drug cases |
Property used in connection with or derived from illegal drug transactions may be seized |
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Under what conditions made an arrest warrant be issued by a judge magistrate or clerk |
A judge magistrate or clerk after examining the complainant and other witnesses under oath and their fight determining probable cause exists may issue an arrest warrant. Hearsay evidence is admissible at the hearing. |
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What are the elements of a lawful arrest warrant |
The arrest warrant must describe the offense charged with reasonable certainty, specifically name or describes the accused, be directed to the appropriate officers, command the person named to be arrested and brought before the appropriate court, and be signed by the magistrate |
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What is the general rule of arrest without a warrant |
Any officer may arrest any person who has committed a crime in his presence or whom the office or reasonably suspects has committed a crime not in the officers presence. |
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Under what conditions me an officer arrest a person for an alleged misdemeanor not committed in his presence |
The officer may arrest a person for an alleged misdemeanor not committed in his presence when he receives a telephone or radio message that a warrant for such offense is on file |
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When man officer make a warrantless arrest for assault and battery not committed and his presence |
An officer may make a warrantless arrest for assault and battery that occurred not in his presence based on probable cause upon the reasonable complaint of an eye witness |
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What is the mistake of law rule of conduct prompting arrest occurs in the officers presence |
If conduct prompting arrest occurs in the officers presence an arrest resulting from mistake of law should be judged by whether the arresting officer acted in good faith and with reasonable belief in the validity of the arrest |
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What is the rule of warrantless arrests at a hospital |
Police may arrest a person without a warrant if they have reasonable grounds to believe that the individual was involved in a motor vehicle accident from which a crime a arose and that the arrestee committed the crime |
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What are the statutory exceptions for warrantless arrest for misdemeanors |
No warrant needed to arrest for misdemeanors not committed in the presence of police when motor vehicles are involved, for shoplifting when there is probable cause based on the complaint of an eyewitness, when the officer receives a telephone radio message that there was a warrant on file, when police receive an electronic message describing a suspect and alleging such a person Would flee the jurisdiction of the Commonwealth, when the person is taken to detox for public drunkenness in violation of Virginia code, or where police have reasonable grounds to believe the person committed an assault and battery against a family or household member |
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May an officer of the law arrest a person outside the officers jurisdiction |
When in close pursuit an officer may arrest a person outside the officers jurisdiction and return the accused if they arrest is made an adjoining county or corporation. If they arrest is not in an adjoining locality the officer must bring the accused before a magistrate in the jurisdiction to have a warrant issued |
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May other state officials or the United States arrest people in Virginia when in close pursuit |
Yes Virginia extends the courtesy of allowing other state officials or the US to arrest in Virginia when in close pursuit providing the other state extends the same privilege to Virginia officers |
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What is the procedure of immediate disposition after arrest |
If the accused was arrested with warrant, she must be brought before the judicial official who may proceed directly to trial if the official is a judge of a District Court that has jurisdiction, the offense is a misdemeanor, and the accused consents and the Commonwealth does not object |
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What is the procedure after arrest without a warrant |
If the accused was arrested with a warrant she must be brought before a judicial officer who will either issue a warrant or release her |
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What is the rule prohibiting unnecessary delay |
An officer may not hold and arrested person for an unreasonable length of time. However not every violation of this requirement results in the exclusion of evidence |
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What is the basis of setting bail |
Bell is set and fixed amounts depending on gravity of the charge |
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May the accused immediately appeal on an interlocutory basis a decision denying bail, excessive bail, or unreasonable terms of recognizance |
Yes |
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Why may bail be denied |
Bail may be denied if there is probable cause to believe the accused will not appear for trial or constitutes an unreasonable danger to himself or the public bail can be revoked for the same reasons |
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Does an accused have a right to a preliminary hearing if charged with a felony |
Yes an accused has a right to a preliminary hearing if charged with a felony unless an indictment is returned prior to the preliminary hearing. |
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Is failure to permit an accused charged with a felony to have a preliminary hearing a reason for reversible error |
Yes |
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If an accused was not given a preliminary hearing according to his right is the defect waived if not objected to prior to trial |
Yes the defect is waived if not objected to prior to trial |
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Can there be joint preliminary hearings against defendants concerning the same illegal action |
Yes there can be joint preliminary hearings against defendants concerning the illegal action on the motion of the prosecution |
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Is discovery available in misdemeanor prosecutions |
No |
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In what cases is discovery available |
Discovery is available only in felony prosecutions, and trial courts of record in other words circuit courts, and to a lesser extent and general district courts |
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Does the Commonwealth have a right to discovery where the accused does not make a motion for discovery or withdraws a motion already made? |
No the Commonwealth has no right to discovery where the accused does not make a motion for discovery or withdraws a motion already made. The Commonwealth right attaches only after the defense has been permitted some discovery of the states case. Neither the prosecution nor the defense need disclose the names of witnesses to the crime or witnesses who will be testifying. |
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What are examples of involuntary confessions that are not admissible |
Confessions that are not admissible are confessions obtained through use of force, threats of violence, engendering hope of benefit, use of drugs, artifice or trick, being held incommunicado for lengthy periods, or threats of worst treatment. These are involuntary confessions. |
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Is a confession involuntary simply because it was prompted by mental illness? |
No a confession is not involuntary simply because it was prompted by mental illness some official coercion must be present. |
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How does the harmless error test apply to involuntary confessions.? |
A conviction will not be overturned for erroneous admission of an involuntary confession if the government can show there was other overwhelming evidence of guilt this is the harmless error test |
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Are confessions resulting from illegal arrests or searches admissible |
No confessions resulting from illegal arrests or searches or not admissible. |
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Does recitation of Miranda warnings dissipate the taint of an illegal arrest |
Not always |
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How does a court determine whether a person was in custody |
A person will be considered to be in custody if a reasonable person with like age, mental and physical condition, intellect etc. as the suspect would believe that she is not free to go. |
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Are Miranda warnings required when the accused makes spontaneous or voluntary statements before interrogation has begun? |
No Miranda warnings are not required when the accused makes spontaneous or voluntary statements before interrogation has begun. |
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Are two step interrogations presumed to be tainted? |
Yes subsequent confessions following an involuntary confession are presumed to be tainted. |
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Under what circumstances can the Commonwealth overcome the presumption of a tainted confession |
In Virginia the state can overcome the presumption of a tainted confession by clear and convincing evidence to the contrary. Tainted evidence can also be used to impeach |
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Is the voluntariness of a confession a question of law or fact. |
The voluntariness of a confession is a question of fact. |
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Who bears the burden of proving volunteriness of a confession |
The Commonwealth bears the burden of proving the voluntariness of a confession by the preponderance of the evidence |
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Is a defendant entitled to take the stand to testify at trial regarding the voluntariness of his confession without waving his fifth amendment privilege against self-incrimination |
Yes a defendant is entitled to take the stand to testify regarding the voluntariness of a confession without there by waving his fifth amendment right at trial |
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Can a defendants refusal to take a blood or alcohol test be used as evidence of self incrimination |
Blood alcohol tests are not within the federally protected privilege against self-incrimination but under Virginia law an unreasonable refusal to submit to a blood or breathalyzer test is admissible only for the purpose of explaining the absence of a chemical test |
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What are the types of grand jury’s in the Commonwealth of Virginia |
Regular grand jury’s, special grand jury’s, and multi jurisdictional grand jury’s |
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What is a regular grand jury |
A regular grand jury consists of not less than five or more than nine persons and indictments are found or presentments are made by at least four members concurring in the finding. This grand jury inquires into all felonies , misdemeanors, and violations of penal laws. It considers bills of indictment prepared by the attorney for the Commonwealth and determines whether there is sufficient probable cause to return such indictment, a true bill. It is an accusatorial grand jury. |
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In Virginia do regular grand juries return indictments on misdemeanors and violations of penal laws. |
Yes |
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What are the parameters of a special grand jury |
Special grand jury’s consist of not less than nine or more than 11 persons. Special grand jury’s investigate and make reports on criminal activity in the community or misfeasance of governmental authority by agencies or officials. The report is filed with the court and then the jury is discharged. It is an investigative grand jury |
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What are the parameters of the multi jurisdictional grand jury |
Multi jurisdictional grand juries act across jurisdictional lines within the Commonwealth to investigate and return indictments where appropriate |
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What are the qualifications for jurors on a grand jury |
Jurors must be citizens of the state at least 18 years old residents of the state for one year and for six months of the county or corporation in which the court is to be held and otherwise qualified to be a juror. There is a constitutional right to a grand jury drawn from a group representing a cross-section of the community |
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Is the grand jury charged by the judge in the presence of any person summoned or selected for a Petit jury |
No after the jury is sworn it is charged by the judge this will not be done in the presence of any person summoned or selected for a Petit jury violation is reversible error |
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What is the procedure of regular grand jury |
Four members must concur in finding or making an indictment or presentment names of witnesses or jurors providing the information are written at the foot of the presentment or indictment. Although not returned a true bill, the same offense may be acted on again by the same or another grand jury. |
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May attorneys for the Commonwealth go before regular grand jury’s during their deliberation except as a witness or to advise as to discharge of the juries duties |
No no attorney for the Commonwealth may go before any grand jury during its deliberation except as a witness or to advise as to discharge of the grand jury’s duties |
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What is the procedure before a special grand jury |
A special grand jury has power to subpoena persons to appear before it and produce records, papers, documents, and things. Witnesses maintain a right against self-incrimination and have a right to counsel. The attorney for the Commonwealth may only be present during the investigatory stage of the proceeding when his presence is requested or when the jury was empaneled upon his motion during which time he may interrogate witnesses provided the special grand jury request or consents. Once the jury is deliberating the attorney for the Commonwealth may only be present when his legal advice as requested |
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Do witnesses before the special grand jury maintain a right to avoid self incrimination |
Yes |
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Do witnesses before a special grand jury have a right to counsel |
Yes |
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Can the attorney for the Commonwealth be present during the investigatory stage of the special grand jury proceeding? |
Yes when his presence is requested or when the jury was in paneled upon his motion during which time he may interrogate witnesses provided the grand jury request or consents to such interrogation |
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Do all irregularities in the regular grand jury constitute error |
NO. Irregularities in the regular grand jury which do not violate a constitutional safeguard are harmless error |
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When and how must objections to compositions of grand jury be made? |
Objections to grand jury composition must be made before pleading to the merits at trial and include indictment of a juror for a felony and racial exclusion in the jury selection which must be systematic |
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What is a presentment? |
A presentment is a written accusation of crime, prepared and returned by a regular grand jury from their own knowledge or observation without a bill of indictment laid before them |
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What is an indictment |
An indictment is a written accusation of crime, prepared by the attorney for the Commonwealth and returned, a true bill, upon the oath or affirmation of a legally impaneled regular grand jury |
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What is an information |
An information is a 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 |
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What is the difference between a presentment and an indictment |
Both are written accusations of crime but it indictment is prepared by the commonwealth attorney and returned a true bill on the oath or affirmation of the grand jury |
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Can a person be tried for a felony without an indictment or presentment made by the proper grand jury |
No a person cannot be tried for a felony unless an indictment or presentment has first been made by the proper grand jury with one exception. If the accused waves this right he may be tried without an indictment or presentment and instead on a warrant or information. This right is waived if not raised before trial |
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What is the difference between a presentment or indictment and an information |
Resentments and indictments or put before the grand jury and information is not put before the grand jury |
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How do delays in filing the necessary charging documents affect the imprisonment of the accused |
The accused must be discharged from prison if a present meant indictment or information is not found or filed against him before the end of the second term of court at which he is held to answer with exception : If there are reasons of sickness or inevitable accident, inquiry as to the sanity of the accused or where delay is caused by material prosecution witnesses being enticed or kept away |
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If an indictment is not returned prior to hearing, Does the accused have a statutory right to a preliminary hearing to determine whether they were grounds to believe he committed the offense. |
Yes if the accused is charged with a felony. This right Is waived if not raised before trial. A defendant also has a constitutional right to a determination of whether there is probable cause if there are significant pre-trial constraints in other words jail or bail on his liberty. |
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How long May the defendant be held without a probable cause determination? |
48 hours is presumptively reasonable. |
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Or minor errors sufficient to quash an indictment |
No |
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What information should an indictment include |
The name of the accused, a description of the offense charged, and a site for the law defining the offense, and identification of the place and time of the offense. Indictments can be very general but should include these |
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Is it appropriate for the court to permit amendment of an indictment, presentment, or information? |
Yes it is appropriate if there is a defect in any indictment, presentment , or information. The court may permit amendment at any time before the jury returns a verdict for the court finds the accused guilty or not guilty if the amendment does not change the nature or character of the offense charged. |
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When can an accused be tried after an indictment is found |
And accused may be tried in the same term after an indictment is found. Trial must commence within the time limits of the speedy trial statute |
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What are the requirements of Virginia’s speedy trial statute |
And accused is forever discharged from prosecution if he is in custody and no trial is commenced within five months of the preliminary hearing or, if he is not in custody and no trial is commenced within nine months of the preliminary hearing. |
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When is a trial deemed to commence in compliance with the speedy trial statute |
A trial is deemed to commence when jeopardy attaches or win a plea of guilty or nolo contendere is entered |
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When does Jeopardy attach in Virginia? |
In a jury trial Jeopardy attaches when the jury is empaneled and sworn in. In a bench trial Jeopardy does not attach until the first witness has been sworn |
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When does the speedy trial period Commence? |
If there is no preliminary hearing or the accused waved a preliminary hearing the commencement of the running of the periods of time is the date and indictment or presentment is found. If there was no indictment or presentment prior to arrest the periods commence from the date of the arrest |
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Is time during pendency of any appeal a tolling event that pauses the speedy trial. |
Time during the pendency of any appeal and appellate court is not included. The prosecution has the burden of proving a delay excusable |
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What are the events the toll the statute of limitations for criminal offenses |
Defendants insanity, defendants escape from jail or failure to appear, illness or forced absence of a Commonwealth witness, granting of separate trials to joint felons, hung jury, granting a continuance upon a motion of the accused or by his concurrence in such motion by the Commonwealth Commonwealth |
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Is failure to invoke the speedy trial statute until after the final judgment a waiver |
Yes failure to invoke the speedy trial statute until after judgment is a waiver |
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Is the U.S. Constitution speedy trial clause violated by a delay between the dismissal of charges and re-indictment for the same offense |
No the constitutional speedy trial clause is not violated by a delay between dismissal of charges and re-indictment. |
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Does the right to a speedy trial apply even if the accused does not know of the charges against him and it’s not restrained. |
Yes The right to speedy trial applies even if the accused does not know if the charges against him and does not restrain seven more page |
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Does an accused have a right to jury trial in a court of record regardless whether the offense is a misdemeanor or felony |
Yes |
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What is required for a defendant to waive the right to have a jury |
Consent and concurrence of the accused not to have a jury must be entered specifically in the record and there after the judge determines guilt and sets the sentence. The court will hear and determine the case without a jury where a plea of guilty is entered |
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Does the accused have an absolute right to a jury in a court of record |
Yes |
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In cases of misdemeanors in courts not of record is there a right to a jury |
No however the defendant has a right to appeal the conviction to a court of record and receive a trial de Novo before a jury. |
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Does the defendant have the right to trial by jury for traffic in fractions tried in a circuit court |
Yes |
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Does the defendant have a right to trial by jury for traffic infractions tried and a district court |
No |
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What are the qualifications for serving on a jury |
Jurors must be citizens over 18 years of age, residents of the state for one year and residents of the county city or town for six months. Jurors must be competent, represent a cross-section of the community, and can serve for only one term during the year unless and until the names of all others in the jury box have been drawn. If defendant objects to the contravention of this rule before the juror is sworn, service of such person is reversible error. |
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How are jurors in felony cases selected |
20 persons free from exception are selected for voir dire. both sides are allowed four peremptory challenges each to establish a jury of 12 |
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How are jurors selected for misdemeanor cases |
13 persons free from exception or selected for veneer and both sides are allowed three peremptory challenges each to establish a jury of seven |
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Under Virginia law is failure of the court to exclude a venireman who should be excluded for cause reversible error? |
Yes failure to exclude a venireman who should be excluded is caused for reversible error even when the veneer man is excluded by the defendants use of a peremptory challenge. |
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Can a juror be challenged for a cause for being related to either party |
Yes |
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Can a juror be excused for cause for having an interest in the case or having a bias or prejudice related to the action |
Yes |
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In death penalty cases can a juror be challenged for cause and excluded if the jurors doubts about the death penalty would prevent or substantially impair performance of the jurors duty or if the juror states he would automatically give the death penalty on any guilty verdict |
Yes |
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Is an exception allowed for jurors on account of age or other legal disabilities after they are sworn |
No exceptions unless by leave of court |
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Is sequestration of a jury automatic |
There is no sequestration of the jury in Virginia unless the court directs otherwise. The court may discharge a jury that cannot reach a verdict, or if there is a manifest necessity for such discharge |
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In general where is venue proper in a criminal case in Virginia |
A trial must take place in the county or city and which the crime was committed. All questions of venue must be raised before verdict in cases tried by a jury and before a judgment in nonjury trial’s |
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In special situations where the general rule on venue cannot be applied what should be done |
Look to the place that has the logical nexus with the crime and the defendant |
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Does the Commonwealth or the defendant have the burden to prove venue |
The Commonwealth has the burden |
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Venue questions appear frequently on the Virginia board exam. what is the rule in the event there are offenses committed out of state or involving stolen property or forgery an act in one place causing injury and another? |
A good rule of thumb is that venue is proper in anyplace touched by the crime. For example where stolen property was purchased where a body was found, where the forgery took place or was passed. |
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What is the rule on Assuring safe and impartial trials |
The burden of proof is on the accused to show good cause for a motion questioning safe and impartial trial. The accused must show mob action, inflammatory press or media coverage, or unusual difficulty in securing an impartial jury |
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What is the procedure on questions of defendant insanity |
A psychiatrist must be appointed to examine an indigent defendant Upon a threshold showing that the defendants sanity is likely to be a significant factor in his defense |
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If the jury find the accused not guilty by reason of insanity or mental retardation What happens next |
Accused is placed in custody of the commissioner of mental health and examined. Based on the exam the court may find the accused is in sane or mentally retarded or dangerous to public peace or to himself and have him committed. Otherwise the accused will be discharged and released |
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Does the defendant have to be present during the trial of his felony |
No the defendant has a waiver of a right to be present during the trial. |
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Will defendant who fails to appear when charged with a misdemeanor or traffic infraction be tried in his absence by the court without the jury |
He may be tried in his absence but it’s not mandatory |
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May a defendant be removed from the court and tried and his absence if he is disruptive |
Yes |
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May a defendant be tried in Absentia if he knowingly and voluntarily absconded from the jurisdiction after commencement of trial |
Yes |
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Under what circumstances may persons charged with participating in contemporaneous and related acts or occurrences be tried jointly |
The court may order a joint trial unless it would constitute actual prejudice to a defendant. If prejudice will result from a joint trial the court will order severance |
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Does the accused have a right to be tried for only one offense at a time if several offenses are related |
No the court will order joinder of offenses generally. |
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Will the accused be asked to plead after indictment unless arraignment is waived |
Yes |
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Will the accused be asked to plead after indictment unless arraignment is waived |
Yes |
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Before pleading to the merits is it appropriate for the accused to make a motion to dismiss or a motion to grant appropriate relief |
Yes |
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Can a court refuse a plea of nolo contendere and either misdemeanor or felony cases? |
No a court cannot refuse a plea of nolo contendere |
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What is a plea of nolo contendere |
It is neither a confession nor a declaration of guilt or innocence. The defendant agrees though that the court may consider him guilty for the purpose of imposing a judgment and a sentence. The plea also waives all defenses except those based on jurisdiction |
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What are the requirements of a guilty plea |
If defendant pleads guilty the record must indicate the plea was made intelligently knowingly voluntarily |
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What is the procedure for a plea agreement |
Any plea agreement must be reduced to writing and presented to the court. If the court does not except the agreement, defendant must be allowed to withdraw his plea. But if the agreement was solely to recommend a certain sentence and the court does not follow the recommendation the defendant will not be allowed to withdraw the plea if it was otherwise voluntary. |
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When must a motion to withdraw a plea be made? |
It can only be made before sentence is imposed or while imposition of sentence is suspended. However the court in it’s discretion may permit a defendant to withdraw his plea within 21 days after final judgment |
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What are the defenses that are not waved and a guilty plea |
The defenses that are not waived in a guilty plea are voluntariness, lack of jurisdiction, ineffective assistance of counsel, and breach of the plea bargain. |
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May a prosecutor threaten and carry out his threat to reindict on a more serious charge if an accused does not plead guilty to the offense with what she was originally charged |
Yes |
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May a court accept a plea even though the defendant is unwilling to admit his guilt if there is other factual evidence of guilt and the record record |
Yes |
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May a defendant challenge his sentence following a guilty plea if the sentence exceeds that authorized by law |
Yes |
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Does a plea of not guilty deny every essential alligation in the charge? |
Yes |
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Does the defendant have a right to a public trial |
Yes but the court in it’s discretion may exclude from trial any person whose presence would impair the conduct of it |
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Does counsel for the Commonwealth have the right to make an opening statement |
Yes |
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Can commonwealth counsel comment before the jury on the failure of the accused to testify? |
Only if such comment is a response to defense counsel’s assertion the defendant was not given a chance to tell his side of the story. |
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Can counsel for the commonwealth inform the jury that the court can correct it’s mistakes |
No |
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Generally will a judgment be reversed after the court has directed the jury to disregard improper conduct by counsel |
No generally a judgment won’t be reversed If the judge needed to instruct the jury to disregard counsel’s improper conduct |
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Are unanimous verdicts required in Virginia |
Yes |
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May a defendant be convicted of less than the offense charged |
Yes a person tried for a felony may be acquitted a part of the charge and sentenced for part of the charge of which he was convicted if that offense was substantially charged in the indictment or necessarily included in the charge. The jury may find the accused not guilty of the felony charges in the indictment but guilty of an attempt to commit a felony or being an accessory to the felony |
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If there’s a general verdict of guilty but one count or more of several is faulty what happens |
If defendant does not object before the verdict and a general verdict of guilty is found judgment must be entered against the accused if any count is good unless plainly the verdict could not have been found on the good count |
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What happens if a jury finds a verdict on an uncertain count |
If the court over rules of defense objection to a faulty count and there’s a general verdict of guilty but it’s uncertain which count the verdict is found it on, if the jury’s been discharged account will be set aside, but if manifest that the verdict could not have been found on the bad count the verdict will stand |
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Under what conditions will a person be retried for the same offense? |
A person will be retried if there is a hung jury, a mistrial is declared for manifest necessity, a defendant is acquitted due to a variance between the allegations and the proof, or the prosecution is for conspiracy after some of the alleged overt acts of that conspiracy have already been prosecuted |
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Does Virginia law allow prosecution under a state statute after a person was prosecuted under a federal statute for the same act? |
No under Virginia law prosecution under a federal statute bars later prosecution for the same act under a state statute |
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And for purposes of the Virginia prohibition against prosecution under two different statutes state versus federal when is a federal prosecution deemed to commence |
The federal prosecution is deemed to commence upon the return of a grand jury indictment or the filing of an information |
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When a case involving driving while intoxicated violates two different statutes does one of them get dropped? |
When a person in Virginia is charged with driving while intoxicated as well as reckless driving growing out of the same act and it’s convicted of one the court must dismiss the other |
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Can the double Jeopardy defense be waived |
Yes the double Jeopardy defense can be waived if not raised before judgment and the second trial |
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Under what conditions can the prosecution appeal the dismissal of a case |
The prosecution may appeal any dismissal upon the defendants motion which does not constitute an acquittal on the merits. However in Virginia the prosecution is limited to appeals only in certain adverse pre-Jeopardy rulings for example motions to suppress evidence seized in violation of the fourth amendment and in reversals of convictions In felony cases by the court of appeals |
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Can a defendant be prosecuted in a single proceeding for charges involving multiple victims |
Yes |
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Can a defendant who successfully appeals be prosecuted for a higher offense than that of which he was convicted in the first trial |
No |
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If the defendant is convicted of a lesser included offense in a court not of record and demand to trial de novo in a court of record can he be tried and convicted in the new trial for the greater offense |
No/no |
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Does collateral estoppel apply to a fact once determined by a court of competent jurisdiction in a criminal proceeding |
Yes collateral estoppel applies to a fact once determined by a court of competent jurisdiction in a criminal proceeding and cannot again be litigated between the same parties. Defendant waves the collateral estoppel bar if he does not raise it before verdict in the second trial |
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In general can the prosecutor comment on the defendants failure to testify |
No |
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Is a person convicted of a felony or perjury competent to testify |
Yes but his conviction may be used to affect his credibility |
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Under what circumstances may a defendant’s spouse Be compelled to testify against the defendant in a criminal case? |
The spouse may be compelled to testify in a prosecution for an offense committed by one against the other or against a minor child of either, or in a case in which either is charged with forgery of the others signature, or in any proceeding related to violation of the laws pertaining to criminal sexual assault. Neither spouse without consent of the other may be examined as to any communication privately made by one to the other while married. |
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What is a writ of error |
A writ emanating from an appellate court demanding that a lower court convey the record of a case to the appellate court so that the record may be reviewed for alleged errors of law committed during a judicial proceedings |
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What is the Virginia rule on Writs of error |
If a person sentenced by a circuit court to death or confinement in the penitentiary asks for time to apply for a writ of error the court must postpone the execution of a sentence for such time as it may deem proper. in all of their cases the court may do so |
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Who decides punishment after a felony conviction |
The jury decides punishment as prescribed by law in a separate sentencing proceeding following determination of guilt. |
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Who decides punishment after a felony conviction |
The jury decides punishment as prescribed by law in a separate sentencing proceeding following determination of guilt. |
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Is the jury permitted to grant suspension of sentences or probation |
No |
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Who decides punishment after a felony conviction |
The jury decides punishment as prescribed by law in a separate sentencing proceeding following determination of guilt. |
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Is the jury permitted to grant suspension of sentences or probation |
No |
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Is the judge bound by a jury recommendation of leniency |
No |
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Who decides punishment after a felony conviction |
The jury decides punishment as prescribed by law in a separate sentencing proceeding following determination of guilt. |
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Is the jury permitted to grant suspension of sentences or probation |
No |
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Is the judge bound by a jury recommendation of leniency |
No |
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Who prescribes the sentence if the case was tried without a jury |
Sentence is by the court |
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Who decides punishment after a felony conviction |
The jury decides punishment as prescribed by law in a separate sentencing proceeding following determination of guilt. |
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Is the jury permitted to grant suspension of sentences or probation |
No |
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Is the judge bound by a jury recommendation of leniency |
No |
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Who prescribes the sentence if the case was tried without a jury |
Sentence is by the court |
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Is the sentence imposed by the jury the final word |
Not necessarily the judge may suspend all or a portion of the sentence |
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Pending pronouncement of the sentence may the accused be released on bail Or jailed |
Pending sentencing the accused may be jailed or released on bail except where the accused is convicted of first-degree murder |
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Before pronouncement is the accused permitted to make a statement |
Yes |
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Can the court suspend the sentence in whole or in part or place the convict on probation |
Yes |
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Do sentences to confinement for two or more offenses run concurrently |
No sentences to confinement for two or more offenses do not run concurrently unless expressly ordered by the court |
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What is the jurisdiction of courts not of record |
Courts not of record have jurisdiction to try misdemeanors arising in their respective counties or cities for which they were created to try violations of ordinances laws and bylaws |
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Is the accused normally tried by indictment |
No the accuses normally tried upon a warrant |
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On conviction in a trial court not of record Does the accused have an absolute right to appeal |
Yes upon conviction the accused has an absolute right to appeal within 10 days from such conviction whether or not such conviction was upon a plea of guilty |
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On an appeal in the circuit court will the record of the prior trial from General District Court be admitted In the de novo circuit court trial |
The record from the trial court not of record will not be admitted except for statements or admissions |
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Can the sentence at the new trial in the court of record be greater than that handed down in the court not of record |
Yes the sentence can be greater. However the defendant may not be tried for a more serious charge in the trial de novo |
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What does a writ of habeas corpus do |
It instructs the warden of a penal institution to bring the petitioner before the court to determine the lawfulness of the detention |
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Can a petitioner raise deprivation of constitutional rights as an issue under a writ of habeas corpus |
Yes |
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Does a petitioner have standing to raise non-jurisdictional defects which he failed to assert at his trial that where he had full opportunity and failed to assert upon his conviction |
No the petitioner does not have standing to raise non-jurisdictional defects if he had the full opportunity to raise them at trial or upon this conviction |
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Is there a right to counsel for a writ of habeas corpus or an appeal of a denial of a writ of habeas corpus |
There is no right to counsel for a writ of habeas corpus or an appeal of a denial |
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What is a writ of actual innocence |
The Virginia supreme court may issue a writ of actual innocence based on new testing of biological evidence that exculpate a person convicted of a serious felony |
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Where must the petition for the writ of habeas corpus be filed |
It must be filed in the court where the original judgment order of conviction complained of in the petition is entered Except in cases of the death penalty |
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Is habeas corpus a civil or criminal proceeding |
Habeas corpus is a civil proceeding |
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Who has the burden of proof in a habeas corpus proceeding |
The petitioner has the burden to prove by a preponderance of the evidence that he is illegally detained |
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Who has a right of appeal following a decision by a trial court on a writ of habeas corpus |
Both the petitioner and the commonwealth have the right to seek a writ of error following a decision by the trial court on a writ of habeas corpus. If the writ is granted the Commonwealth has the power to retry the petitioner on the original charges after the habeas corpus relief has been granted |
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Who pays the costs in a habeas corpus proceeding |
If the habeas corpus petition is denied cost of the proceeding and attorneys fees of appointed counsel are assessed against the petitioner |
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What is the jurisdiction of criminal proceedings before the juvenile and domestic relations courts |
The JDRCT have exclusive jurisdiction over matters involving juveniles under the age of 18 accused of committing delinquent acts that would be crimes if committed by adults. The JDRCT also have jurisdiction to try misdemeanor cases involving family and household members who commit crimes against each other and to conduct preliminary hearings in felony cases involving juveniles |
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What is the up to date info on number of jurors in the jury pool and how many will eventually be selected |
In a felony case, 20 prospective jurors are called from those in the courtroom, and 12 members will be selected. In a misdemeanor case, 13 prospective jurors are called, and the final jury will include 7 jurors. One or more alternate jurors may be selected to be on the jury in case a juror becomes too ill to serve or is removed from the jury during the trial for other reasons. |
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