Criminal Law Flashcards
Larceny
In Virginia, any crime that would be larceny, embezzlement, or false pretenses under common law may be charged as larceny.
Grand larceny is committed when a person commits:
* Larceny from the person of another, taking money or things worth $5 or more;
* Simple larceny, not from the person of another, taking goods and chattels worth $1,000 or more; or
* Simple larceny, not from the person of another, taking any firearm, regardless of its value
Petit larceny is:
* Larceny from the person of another of something worth less than $5, or
* Simple larceny, not from the person of another, of something worth less than $1,000
Presumption of larceny: One in the unexplained and exclusive possession of recently stolen property can be presumed to be guilty of larceny
Extortion
In Virginia, extortion consists of:
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
Sending a note or an electronically transmitted communication threatening to kill or do great bodily harm to the victim or the victim’s family
Arson
In Virginia, arson is the malicious burning of any building.
“Burning” includes the use of explosive devises and other substances.
There are more serious penalties for the malicious burning of a dwelling. Dwellings include any structure or building in which persons usually dwell or lodge, including homes, boats, trailers, hotels, hospitals, mental health facilities, houses of worship, railroad cars, vessels, jails, or prisons. Outhouses are not dwellings for purposes of the arson statutes.
Statutory Rape
In Virginia, sexual intercourse with a child under age 13 is punished as rape.
Virginia makes it a Class 4 felony to have carnal knowledge of a child 13 or older, but younger than 15. The potential punishment is reduced if the accused is a minor and the victim consents.
Kidnapping
In Virginia, a person is guilty of kidnapping (abduction) when the person:
* By force, intimidation, or deception
* Without legal justification or excuse
* Seizes, physically detains, takes, transports, or secretes
* Another person
* With the intent to deprive such person of personal liberty, or to withhold or conceal the person from another person, authority, or institution lawfully entitled to their charge
Note that asportation of the victim from one place to another is not required if all other elements are present.
Homicide Analysis
(1) Did the defendant “cause” the death of the victim?
(2) If (1) answered “yes,” did the defendant act with “malice afore-thought”? [If so, murder unless—]
(3) If (1) and (2) answered “yes,” was there also adequate provocation? [If so, voluntary manslaughter]
(4) If (1) answered “yes” and (2) answered “no,” did the defendant either:
* Act with criminal negligence? [involuntary manslaughter]
* Cause death while committing a misdemeanor? [involuntary manslaughter]
Accomplice Liability
Virginia retains the common law categories of principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact.
In felony cases, every principal in the second degree and accessory before the fact may be indicted, tried, convicted, and punished in all respects as if a principal in the first degree. They are all treated as principals.
Being an accessory after the fact is a separate crime.
No Conviction Required
It is not necessary for the principal in the first degree to be convicted of the offense for another party to be convicted. However, it must be shown that a crime has been committed by the principal before the accessory can be convicted.
Withdrawal
In Virginia, in order to withdraw and escape criminal liability for the completed felony, the defendant must:
* Before completion of the felony
* Withdraw all aid and encouragement as evidenced by acts or words showing confederates disapproval and opposition to the contemplated crime
It is essential that the withdrawal is made in due time and that the withdrawer does everything possible to detach from the criminal enterprise and to prevent consummation of the crim
Conspiracy
Virginia follows the bilateral approach to conspiracy. A conspiracy is committed when there is an agreement between 2 or more persons entered into with an intent to commit a felony. The conspiracy is committed when the agreement is complete; no overt act is required.
Police Officer as Co-Conspirator
An accused may not be convicted for conspiracy with a police officer and the officer’s confidential informant.
Conviction
If a defendant has already been tried and convicted of an act that the defendant also conspired to commit, the defendant is subject to conviction only for the completed substantive offense (that is, may not thereafter be convicted for the underlying conspiracy).
* Exception: A conspiracy conviction is not barred where it is based on acts separate from the substantive conviction.
* Exception: A defendant may be convicted of both the completed substantive offense and the underlying conspiracy if the convictions occur in a single trial.
Acquittal
If a defendant is acquitted of the underlying felony, then a subsequent prosecution for conspiracy is barred.
Co-Conspirator’s Hearsay Exception
Statements made in furtherance and during the course of a conspiracy are admissible against all other members of the conspiracy. (They are treated as if made by the co-conspirator.)
Insanity Defense
In Virginia, the defendant may choose to use either the M’Naghten or irresistible impulse test.
The defendant must give the Commonwealth’s attorney written notice at least 60 days prior to trial that it is defendant’s intent to raise an insanity defense.
The defense has the burden of proving to the satisfaction of the jury that the defendant was insane
Voluntary Intoxication
In Virginia, voluntary intoxication is not a defense, even for specific intent crimes, unless it has produced permanent insanity.
Exception: Voluntary intoxication is a defense to the crimes of first degree murder or aggravated murder if a person is so greatly intoxicated as to be unable to deliberate or premeditate.
Exception to the exception: Mere intoxication from drugs or alcohol is not sufficient by itself to negate premeditation.
Infancy
In Virginia, a child age 7 or younger is assumed incapable of forming intent to commit a crime.
If the child is under age 14, there is a rebuttable presumption of incapacity, but the presumption grows weaker as the child grows older.
If the child is age 14 or over, there is a presumption of capacity. The child may be tried as an adult if charged with an offense that would be a felony if committed by an adult.
Prior Crimes
In Virginia, the prosecution may use prior crimes to show predisposition.
However, to use a prior crime to show predisposition, the crime must be close in time, a similar crime, and the probative value must outweigh the prejudice.
Non-deadly physical force as self-defense
In Virginia, a person may use nondeadly, physical force in self-defense if there is a reasonable appearance that the use of force is justified. Reasonableness is determined from the subjective viewpoint of the person at the time they acted.
There is no duty to retreat, and the force used must be reasonable under the circumstances.
Use of Deadly Force
In Virginia, a person using deadly force must be without fault and show a reasonable belief that the person was being threatened with imminent danger of death or great bodily injury.
When deadly force is used in self-defense to a threat, there must be a present danger of death or great bodily injury. Words alone are insufficient, and the fear for life and safety must be reasonable.
Retreat
Virginia law does not require a person to retreat before using deadly force when confronted with an aggressor.
Exceptions:
* When a defendant has been at fault or was the one who provoked the aggressor, the defendant must retreat as far as safely possible before using deadly force.
* On one’s own premises, there is no duty to retreat, but the use of force must be reasonably calculated to repel the intruder.
Right of Aggressor
The right of the aggressor to use force in self-defense may be regained after total abandonment of the original attack.
