Virginia Criminal Law

Front 1

Virginia state courts may exercise jurisdiction over a criminal offense if

Back 1

(1) the offense was committed wholly or partly within the state

(2) An attempt or conspiracy occurred outside of the state and an act was committed within the state; or

(3) an attempt or conspiracy occurred inside the state to commit an offense outside the state

Front 2

What is the saving provision

Back 2

States that laws in effect on the date the crime is committed apply to the defendant

Front 3

Are traffic offenses deemed criminal

Back 3

No, violations of public order

Front 4

Class 1 Felony

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Class 1 - Death or life. If convicted person was 18 or younger at the time of offense or mentally retarded, life only

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Class 2 Felony

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20 to life (penitentiary)

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Class 3 Felony

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5 to 20

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Class 4 Felony

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2 to 10

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Class 5 Felony

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1 to 10, 12 months in jail, fine up to 2,500

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Class 6 Felony

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1 to 5, up to 12 months jail, 2,500

Front 10

Fine for Class 1 through 4 Felony

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Up to 100,000

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Class 1 misdemeanor

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up to 12 months, 2,500

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Class 2 misdemeanor

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up to 6 months, 1,000

Front 13

Class 3 misdemeanor

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up to 500

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class 4 misdemeanor

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up to 250

Front 15

For misdemeanor, if no punishment or no maximum punishment is prescribed, the offense is punishable as...

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class 1 misdemeanor

Front 16

Who maintains DNA records?

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Department of Forensic Science

Front 17

Principal in First Degree

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criminal actor, i.e., the one who, with the requisite criminal intent, commits the act or omission that causes the criminal result. Note: A person who effects a criminal act through an innocent or unwitting agent is a principal in the first degree, even if the person accused was not present at the time and place of the offense.

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Principal in Second Degree

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is one who not only is present at crime's commission, but also

1 - Commits some over act (inciting, encouraging, advising, or assisting) OR

2 - Shares perpetrator's criminal intent (procures encourages, countenances, or approves commission of crime).

Front 19

Does mere presence during the commission of a crime and subsequent flight constitute sufficient evidence to convict a person as a principal in the second degree?

Back 19

No

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Accessory Before the Fact

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One who orders, counsels, encourages, or otherwise aides and abets another to commit an offense, but who is NOT PRESENT, during commission of crime.

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Accessory After the Fact

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Person who knows an offense has been committed and receives, relieves, comforts, or assists felon in escaping punishment (close family members and servants excluded)

Front 22

Liability for Principal in Second Degree and Accessory Before the Fact?

Back 22

In all respects as if Principal in the First Degree, except only actual murderer can get death penalty, i.e. can be punished as if guilty of first degree, not capital, murder.

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When can Principal in Second Degree and ABF be treated as P1 with respect to Capital murder?

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Murder for hire or when one kills pursuant to the direction or order of one who is engaged in continuing criminal enterprise or terrorism

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If a crime is an incidental probably consequence of concerted action, whether the crime was originally contemplated or not, who is liable?

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All whoo participate in any way in bringing it about are equally answerable for and bound by the acts of evvery other person connected with the consummation of crime. Question of whether the offense is natural and probably result of intended wrongful act is usually one for the jury.

Front 25

Can one who is aiding and encouraging commission of felony withdraw? If so, how?

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Before its completion, withdraw all aid and encouragement. Such withdrawal must be evidences by acts or words showing his confederates that he disapproves or opposes contemplated crime. Must withdraw in due time, and do everything possible to detach himself from criminal enterprise and to prevent the consummation of the crime. If the crime is committed, it must be imputable to some cause independent of the withdrawing party's aide or encouragement (to escape liability).

Front 26

Conspiracy

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Agreement between two or more persons, entered into with intent to agree to commit a felony.

Front 27

Over act requirement for VA conspiracy?

Back 27

None

Front 28

Does conviction for substantive offense bar subsequent conspiracy conviction?

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Yes, but a conspiracy conviction is not barred where it is based on acts SEPARATE from the substantive conviction

Front 29

Can a single agreement to commit several crimes form the basis for multiple violations of conspiracy statute?

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Yes, and can support multiple convictions of criminal defendants under the statute.

Front 30

Does a defendant need to know the entire scope or details of criminal plan for conspiracy?

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No, only essential nature of scheme

Front 31

Can an accused be convicted of conspiracy where the only other party to the agreement is a police officer or police confidential informant?

Back 31

No

Front 32

Is a subsequent prosecution for conspiracy barred where a defendant is acquitted of underlying felony?

Back 32

Yes

Front 33

Define attempt

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a direct act done with the intent to commit a crime, but which falls short of completing the crime. Factual impossibility is no defense.

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Define Solicitation

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Commands, entreats or otherwise attempts to persuade another person to commit a FELONY. Class 6 felony (1 to 5). Person age 18 or older who solicits person under 18 to commit felony guilty of class 5 (2 to 10). Solicitation of murder carries a sentence of not less than 5 years or more than 40.

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Insanity Tests in VA

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M'Naughten Rule - Requiring defendant to show either that he was unable to distinguish RIGHT FROM WRONG or that he did not UNDERSTAND THE NATURE, CHARACTER, and CONSEQUENCES of his actions.

Also, applies IRRESISTIBLE IMPULSE TEST, even if fails above M'naghten test, if due to mental illness unable to control actions or to conform his conduct to law, entitled to acquittal.

Front 36

Is notice required if defendant plans to raise insanity defense

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60 days before trial (also notice regarding use of expert witness to support claim).

Front 37

Why does Commissioner of Behavior Health and Development Services continue to hold successful insanity defendant?

Back 37

If he is currently a danger to public, peace and safety or to himself (he can petition once a year and six months after initial confinement).

Front 38

Burden of proof in insanity defense

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Defense has burden of proving "to the satisfaction of he jury" that defendant was insane.

Front 39

Is voluntary intoxication ever a defense?

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No, not even for specific intent crimes. Unless produces permanent insanity.

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Can voluntary intoxication negate willful, deliberate, and premeditated intent?

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Yes, a person so greatly intoxicated as to be unable to deliberated and premeditate cannot be convicted of a class of murder that requires proof of willful, deliberate and premeditated killing (first degree and capital murder) Mere intoxication does not by itself negate premeditation.

Front 41

Is Involuntary intoxication a defense?

Back 41

Yes, if negates criminal capacity.

Front 42

Infancy presumptions?

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14 or older, presumed capacity
7 or younger, assumed in capable of forming intent to commit a crime
7 to 14 - rebuttable presumption of incapacity, grows weaker as child ages.

Front 43

When is defense of duress available?

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Defendant must demonstrate that his criminal conduct was the product of an unlawful threat that caused him reasonable to believe that performing the criminal conduct (other than to kill innocent person) was the only REASONABLE OPPORTUNITY TO AVOID IMMINENT DEATH OR SERIOUS BODILY HARM, either to the defendant or to another person.

Front 44

Define assault

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Placing of another in apprehension of immediate offensive touching, or an attempted battery

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Define Battery

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unlawful application of force to the person of another resulting in either bodily injury or offensive touching

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Define Malicious wounding

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Malicious shooting, stabbing, cutting, or wounding with INTENT TO MAIN, DISFIGURE, DISABLE, OR KILL. Examples include - causing bodily by caustic substance, explosive or fire, attempts to poison, adulteration of food, drink, drugs, cosmetics)

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Define Aggravated Malicious Wounding

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If person commits malicious wounding and the victim is thereby severely injured and caused to suffer permanent and significant physical impairment, the assailant is guilty of class 2 felony (20 to life). Also includes the intent to cause involuntary termination of woman's pregnancy (or stating such intent to her) and causing such termination or any other permanent and significant physical impairment

Front 48

Define Wounding While committing Felony

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Shooting, stabbing or displaying a firearm in a threatening manner while committing or attempting to commit a felony is a separate statutory offense

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Treatment of Simple Assault or Battery?

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Misdemeanor

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Assault as Hate Crime (punishment?)

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Simple assault against another whom defendant intentionally selects on basis of RACE, RELIGIOUS CONVICTION, COLOR, OR NATIONAL ORIGIN, defendant will be subject to mandatory, minimum period of confinement of at least six months, 30 days of which may not be suspended.

Front 51

Simple Assault on Law Enforcement Office or Firefighter

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If a person commits an assault or an assault and battery against a person knowing or having reason to know that such person is law enforcement officer or firefighter performing duties, guilty of class 6 felony (1 to 5), mandatory minimum of 6 months in jail

Front 52

Simple assault on certain school employees

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Battery against another person knowing or having reason to know that such person is a teacher, principal, assistant principal, or guidance counselor and is engaged in performance of duties, defendant will be guilty of class 1 misdemeanor subject to minimum term of confinement of 5 days. If battery is committed by use of firearm ot other prohibited weapon on school property, mandatory minimum term of six months.

Front 53

Assault Against Family or Household Member

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Any person who commits an assault and battery against a family or household member guilty of Class 1 misdemeanor. On third conviction, guilty of class 6 felony.

Front 54

Mob member liability

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Once a group has assembled for the purpose and with the intent to commit assault and battery, and an assault and battery or act of violence is committed, every person composing such mob becomes criminally culpable even though the member may not have actively encouraged, aided or countenanced the act against the victim.

Front 55

Stalking

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Any person who, on more than one occasion, engages in conduct with the intent to cause emotional distress to another person by placing that person in reasonable fear of death or bodily injury, or who violates a stalking protective order, is guilty of class 1 misdemeanor. Third conviction within 5 year period constitutes class 6 felony.

Front 56

Does mayhem exist in VA?

Back 56

No, see Malicious wounding statute.

Front 57

General Rule on Murder

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All common law murder is presumed to be second degree murder. The burden is on the prosecution to elevate to first degree or capital murder. The burden of goding forward with evidence to reduce prima facie common law murder to manslaughter is on defense. (presumption inference, not unconstitutional shifting of burden of proof)

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Define Capital Murder

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Willful, deliberate, premeditated murder: (1) in an abduction with the intent to extort pecuniary benefit (2) for hire, (3) during armed robbery or attempted armed robbery, (4) during or subsequent to rape, forcible sodomy (attempt), or object of sexual penetration, (4) of public official for purpose of interfering with performance of duties, (5) of witness under subpoena to prevent from testifying, (6) more than one person as part of same transaction, (7) more than one person in 3 years, (8) during drug running, (9) order received as part of criminal enterprise, (10) of pregnant woman known to be pregnant with intent to cause involuntary termination, (11) of someone under 14 by someone over 21, (12) during terrorism

Front 59

First Degree Murder

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Murder, other than capital murder, by: (1) poison, (2) lying in wait, (3) imprisonment, (4) starvation, (5) any willful, deliberate and premeditated killing that does not fall within capital murder.

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Felony Murder

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murder committed, whether intentional or accidental, during the commission of or during an attempt to commit: (1) arson, (2) rape, (3) forcible sodomy, (4) inanimate or animate object sexual penetration, (5) robbery, (6) burglary, (7) Abduction (Kidnapping). Felony murder is treated as first degree murder.

Front 61

Second Degree Murder

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Consists of all murder that is neither capital nor first degree

Front 62

Felony Homicide

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accidental killing, contrary to the intention of hte parties, while committing some felonious act not specified in the first degree murder and capital murder statutes. It is important to note that Virginia has two different statutes regarding killing committed during the commission of a felonious act.

Front 63

Felony Homicide (lesser offense)

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Class 3 felony (5 to 20), the killing is accidental and occurs during the commission of any felony not listed in the first degree murder and capital murder statutes. In determining whether a felony homicide has been committed, the critical factor is the existence of a causal connection between the felony and the accidental killing.

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Define Voluntary Manslaughter

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unlawful killing without malice. In VA, killing committed during mutual combat, in the heat of which defendant struck the blow that killed decedent, is voluntary manslaughter.

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Involuntary Manslaughter

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Killing og one accidentally, contrary to the intention of the parties, during the performance of some unlawful, but not felonious act or during the improper performance of a lawful act amounting to criminal negligence. (negligence mustb e criminal negligence, and accidental killing must be proximate result of lawful act performed in a wanton or willful manner, showing reckless or indifferent disregard of rights of others, reasonably calculated to produce injury, or which make it not improbably that injury will occur).

Front 66

Driving Under the Influence

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Treated as involutnary manslaughter. If conduct was so gross, wanton, and culpable as to show reckless disregard for human life, defendant shall be guilty of aggravated involuntary manslaughter (felony punishable not less than one year not more than 20, one year mandatory minimum)

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Kidnapping (Abduction)

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By force, intimidation, or deception; without legal justification or excuse; seizes, physically detains, takes, transports or secretes, another person; with intent to deprive such person of personal liberty or to withold or conceal him from another person, authority or institution lawfully entitled to his charge. (Asportation of victim from one place to another is not required)

Front 68

Detention of Suspected Shoplifter

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A merchant who has probably cause to believe that a person has shoplifted on the merchant's premises may detain that person for one hour pending the arrival of a law enforcement officer.

Front 69

Rape

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Must have sexual intercourse with a complaining witness or cause complaining witness to engage in sexual intercourse with any other person: (1) against the complaining witness's will by force, threat or intimidation against complaining witness or another person; (2) through the use of complaining witness's mental incapacity or physical helplessness; or (3) under the age of 13

Front 70

Is (when) corroboration required in rape case?

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No corroboratoin of victim's testimony is required to obtain a conviction, EXCEPT when the victim's story is implausible.

Front 71

Is evidence of physical resistance required in rape?

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No, but absence of such evidence may be considered.

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Can depositions be used in rape case?

Back 72

Yes, judge must obtain consent of accused before ordering the taking of a victim's deposition. All parties may be present with right to cross-examine. No other person may be present. Can be read in open court and treated as live testimony.

Front 73

When is prior sexual conduct admissible?

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Alternative Explanation of physical evidence or consent or rebuttal of prosecution evidence of complainant's prior sexual conduct (BUT NOTE - to introduce such evidence motion prior to trial must be made which will be heard behind close doors)

Front 74

Presumption as to physical incapacity of juvenile with respect to rape

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Rebuttable presumption that a child over age 10 under age 12 does not possess physical capacity to commit rape.

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Statutory Rape Rules

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Sex with child under age of 13. Class 4 felony to have carnal knowledge of child 13 or older, but younger than 15. Reduced to Class 6 felony if (1) accused is a minor; (2) victim is 13 or older younger than 14 (3) age gap is more than 3 years and victim consented. Further lowered to Class 4 misdemeanor if child consented and accused was less than three years older than child.

Front 76

Taking indecent liberties with a Child

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A person older than 18 who exposes his genitals to or who sexually propositions a child younger than 15 - class 5 felony. If parent, stepparent, grandparent, stepgrandparent - class 4 felony. Second convictoin also class 4 felony.

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Larceny

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Taking oof personal property of another by trespass with intent to permanently deprive that person of property

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Grand Larceny

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Larceny, from the person of another, of money or property worth 5 or more. (2) simple larceny, not from the person of another, taking goods and chattels worth 200 or more. (3) simple larceny, not from the person of another, taking any firearm.

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Petite Larceny

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Larceny, from the person of another, taking money or other thing worth less than 5; 2 - simple larceny, not from the person of another, taking goods and chattels worth less than 200

Front 80

Proof of Larceny

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Once it is established that the crime of larceny has been committed, a person's unexplained possession of the recently stolen goods permits an inference that he is the one who committed the larceny.

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Embezzlement

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Consists of fraudulent conversion of the tangible or intangible personal property of anotehr with intent to deprive the owner thereof by a person in lawful possession of that property. Property need not be wrongfully appropriated for personal benefit, but another's benefit is sufficient.

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Robbery

Back 82

Taking, with intent to steal, of the personal property of another, from her person or in her presence, against her will, by violence or intimidation. (Prosecution need not prove ownership in victim, only possession) (larceny is lesser included offense)

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Extortion

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Threatened injury to character, person or property of another, or accusing another of any offense and thereby extorting money, property, pecuniary benefit

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Burglary

Back 84

Consists of the entering at night with or without breaking, the entering in daytime or breaking; or the entering and concealing of oneself; (2) within a dwelling house, office, shop, storehouse, warehouse, house of religious worship, ship, vessel, river craft, railroad car, banking house, automobile or truck (if used as a dwelling place), manufactured home, trailer, or an adjoining, occupied outhouse; with intent to commit murder, rape, robbery, larceny, arson, or any felony.

Front 85

Burglary what kind of felony?

Back 85

Class 3 Felony, unless it is committed with deadly weapon; in that case, it is a class felony.

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Arson

Back 86

Proscribes malicious burning or destruction of any building.

Front 87

Perjury

Back 87

Willful false swearing while under a lawfully administered oath regarding a material matter or thing.

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Consequence of Perjury

Back 88

never hold office under Virginia Constitution or serve as juror

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Subornation of Perjury

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inducing of another to give false material testimony. Punishable as perjury.

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Bribery

Back 90

felony by which one corruptly offers a gift or gratuity to a public official or candidate with intent to influence his official acts or decisions. Crime complete when OFFER is made. Both bribery and acceptance of bribe is Class 4 felony (2 to 10)

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Obstruction of Justice

Back 91

An attempt, by force or threat, to intimidate a witness, office of the court, or law enforcement officer (broadly defined) in discharge of her official duties constitutes obstruction of justice. It is also "obstruction of justice" to knowingly and willfuly make materially false statements or representations to a law enforcement officer who is conducting an investigation of a crime allegedly committed by another party.

Front 92

Falsely Reporting a Crime

Back 92

Knowingly give false reports to police officers as to the commission of a crime, with INTENT TO MISLEAD

Front 93

Concealing or Compounding an Offense

Back 93

Unlawful to take money or reward upon an agreement or understanding to compound or conceal such offense or not to prosecute therefor. It is also unlawful for any person (other than the victim of the crime, husband, wife, parent, grandparent, child, grandchild, or sibling) to willfully conceal or destroy any item of physical evidence with the intent to hinder the prosecution or punishment of a defendant who has been charged with a crime against another.

Front 94

Resisting Arrest

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means fleeing from a law enforcement officer when the officer (i) applies physical force to the person or (ii) communicates to the person that he is under arrest, and hte officer has immediate physical ability to arrest the person and a reasonable person would have known that she is not free to leave.