Va Bar - Crimlaw - Va Distinctions

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Kidnapping

Back 1

Known as abduction in VA.

Elements:
(i) By force, intimidation, or deception;
(ii) Without legal justification or excuse;
(iii) A person seizes physically detains, takes, transports, or secretes;
(iv) Another person;
(v) With intent to deprive such person of personal liberty OR to withhold or conceal him from another person, authority, or institution lawfully entitled to his charge.

NB: Asportation of the victim from one place to another is NOT required in VA (though it's one possible way to meet element iii).

Front 2

Malicious wounding

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A weird little VA crime. Stabbing with the intent to maim/wound/kill/disfigure.

Front 3

Year and a day rule

Back 3

Abolished in VA (and in most states, aka this is only different from the common law)

Front 4

Capital murder

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Willful, deliberate, and premeditated murder committed under one of 14 aggravating circumstances (e.g., terrorism, murder for hire, etc.--see outline)

Front 5

First degree murder

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Murder, other than capital murder, by any of:
**LIPS**
(i) Lying in wait;
(ii) Imprisonment;
(iii) Poison; or
(iv) Starvation;
Or any willful, deliberate, and premeditated killing that is not capital murder.

Front 6

Second degree murder

Back 6

All murder is presumed to be 2nd degree. It's the default for killings that don't fall into the other categories.

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Felony murder

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Any murder committed, whether intentional or accidental, during the commission of or during an attempt to commit an enumerated felony. These are:
(i) Arson;
(ii) Rape;
(iii) Forcible sodomy;
(iv) Robbery;
(v) Burglary;
(vi) Abduction (aka kidnapping); or
(vii) Inanimate object sexual penetration.

Felony murder is a first degree murder.

Causation: the death must be caused by the felon via acts directly calculated to further the felony or necessitated by the felony.

Front 8

Felony homicide

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Accidental killing, contrary to the intention of the parties, while committing some non-enumerated felonious act.

Front 9

Voluntary Manslaughter

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Unlawful killing without malice, aka under heat of passion after adequate provocation.

Examples: a killing committed during mutual combat, or after discovering a spouse in bed with someone else.

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Involuntary Manslaughter

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A killing of one accidentally, contrary to the intention of the parties, either:
(i) During the performance of some unlawful but NOT felonious act; or
(ii) During the improper performance of a lawful act amounting to criminal negligence.

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Statutory Rape

Back 11

Sexual intercourse with a child under 13 is punished as rape.

Carnal knowledge, a class 4 felony, is the crime if the victim is 13 or older but younger than 15.

Front 12

Larceny

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Common law larceny, embezzlement, or false pretenses can all be charged as larceny in VA.

Two types:
(a) Grand Larceny is when any of three things happen:
(i) Larceny, from the person of another, taking money or things worth $5 or more;
(ii) Simple larceny, not from the person of another, taking goods or chattels worth $200 or more; or
(iii) Simple larceny, not from the person of another, taking any firearm, regardless of its value.
(b) Petit larceny: any larceny that isn't grand larceny.

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Presumption of larceny

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Unique to VA: if you're in the unexplained and exclusive possession of recently stolen property, you can be presumed to be guilty of larceny. This is a rebuttable presumption.

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Extortion

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Two types:
(i) Threatening injury to the character, person, or property of another or accusing another of any offense and thereby extorting money, property, pecuniary benefit, or any note, or other evidence of debt; or
(ii) Sending a note or an electronically transmitted communication threatening to kill or do great bodily harm to the victim or her family (no money motive necessary).

NB: blackmail is like (i) but using embarrassing info rather than threatening harm.

Front 15

Burglary

Back 15

Dwelling has been expanded to tons of other buildings, like stores, offices, and occupied outhouses.

Breaking requirement has been watered down. Any of the following suffice:
(i) Enter at night, no breaking needed at all;
(ii) Enter during the day and you commit a breaking; or
(iii) Enter during the day and conceal yourself.

Front 16

Arson

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Dwelling need not be of another, and it has been expanded to cover any structure or building in which persons usually dwell of lodge, e.g., boats, trailers, hotels, hospitals, jails, etc.

Front 17

Accomplice Liability

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Accomplices can be tried as if they were the principal. Exception: only the actual murderer can get the death penalty, accomplices can get a max of life in prison; exception to this exception: if it's murder for hire or an act of terrorism, then the accomplice can get the death penalty.

Principal need not be convicted, but it must be shown by clear and convincing evidence that s/he committed the crime.

Withdrawal: regardless of whether the accomplice has aided or encouraged, they must withdraw all aid and encouragement as evidenced by acts or words, showing confederates disapproval or opposition to the contemplated crime, and must do everything possible to detach themselves from the criminal enterprise AND to prevent its consummation. This must be done in due time, aka before the completion of the felony.

Front 18

Conspiracy

Back 18

Keeps the common law approach, unlike the majority rule. AKA in VA there must be TWO people who have the real intent to commit the crime, conspiring with an undercover is not enough.

No overt act required! The agreement itself is enough.

NB: if already convicted of the completed crime, can't later be convicted of conspiracy to commit it (but can be convicted of both in the same trial) unless the conspiracy conviction is based on acts separate from the substantive conviction (not really sure what that means . . .).

If you're acquitted of the substantive crime, you can't be later prosecuted for conspiracy to commit it.

Front 19

Attempt

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Unique test: Requires a "direct act" done with the intent to commit the crime, but which falls short of completing the crime. Probably somewhere between substantial step and dangerous proximity tests.

Front 20

Insanity Defense

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Defendant may choose to use either the M'Naughten test, or the Irresistible Impulse test.

The D must give the Commonwealth's attorney written notice at least 60 days prior to trial that it is the D's intent to raise the insanity defense. The D has the burden of proving insanity "to the satisfaction of the jury."

[To review, the M'Naughten test is satisfied if the D either (i) did not know his act was wrong, or (ii) did not understand the nature of his act. Irresistible Impulse test is satisfied if the D either (i) was unable to control his actions, or (ii) was unable to conform his conduct to the law.]

NB: Remember, the predicate for all insanity defense tests is that the D must have a mental disease or defect.

Front 21

Intoxication

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In VA, intoxication is not a defense, even for specific intent crimes!, unless it has produced permanent insanity.

Exception: may prevent premeditation, so it can get you off from capital or first degree murder. However, mere intoxication from drugs or alcohol is not sufficient by itself to negate premeditation (I guess it needs to be coupled with other evidence??).

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Infancy

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Younger than 7: assumed incapable of forming the intent to commit the crime.

7-14: rebuttable presumption of incapacity, but the presumption grows weaker as the age gets closer to 14.

14 or older: presumption of capacity, and may be tried as an adult if charged with an offense which would be a felony if committed by an adult.

Front 23

Self Defense

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Non-deadly force: D may use it if there is a reasonable appearance that it is justified, as determined from the subjective viewpoint of the D.

Deadly force: D must not have been at fault and show an imminent danger of death or great bodily injury (words alone not enough). No duty to retreat unless the D has been at fault or provoked the aggressor, in which case he must retreat as far as safely possible first (though no duty to retreat on his own premises).
Right of aggressor to use force in self-defense may be regained after "total abandonment" of the original attack.

Reasonable mistake about whether self-defense was justified does not prevent you from claiming it as a defense to prosecution; unreasonable mistake does.

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Defense of others

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D steps into the shoes of the person s/he defends. This means that if the person defended did not have the right of self-defense, you can't claim it either--even if you were acting entirely reasonably in thinking it was justified!

Front 25

Defense of a dwelling

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Non-deadly force may be used to prevent entry, but deadly force may only be used when fearing great bodily injury.

Front 26

Perjury

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(i) Willful false swearing regarding a material matter while under a lawfully administered oath; OR
(ii) Subsequently giving conflicting testimony under oath to the same matter.

A person convicted of perjury cannot hold office or serve as a juror.

Subornation of perjury = inducing another to give false, material testimony--D can be punished as if she committed perjury.

Front 27

Bribery

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A corrupt offer of a gift to a public official with the intent to influence his official acts. Accepting a bribe is also a crime if the recipient is a public employee, public official, or candidate for public office.

Front 28

Obstruction of Justice

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(i) Attempt to intimidate a witness, officer of the court, or law enforcement officer; OR
(ii) To knowingly and willfully make false statements or representations to a law enforcement officer who is conducting an investigation of a crime allegedly committed by another party.

Front 29

False Reports

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Knowingly giving false reports with the intent to mislead police officers as to the commission of a crime.

Front 30

Concealing/Compounding Offense

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(i) Taking money to compound, conceal, or not prosecute an offense (certain exceptions for familial relationships with D); OR
(ii) Willfully concealing or destroying evidence with intent to hinder prosecution of D charged with a crime against another.

Front 31

Resisting Arrest

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When a person prevents a law enforcement officer, with or without a warrant, from lawfully arresting him/her.

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And don't forget these words of wisdom: "Relax. It's a marathon, not a race."