Criminal Law/ Criminal Procedure Flashcards
Every unlawful homicide in Virginia is presumed to be
Second degree murder
Involuntary intoxication is a defense as long as IT
serves to negate an element of general and specific intent crimes.
If a person “carnally knows” (which includes sexual intercourse) a child 13 years or older but under 15, he is
Guilty of class 4 felony
If the child consents to sexual intercourse and the accused is a minor, the crime is
reduced to a Class 6 felony if the consenting child is three or more years younger than the accused, or a Class 4 misdemeanor if the consenting child is less than three years the accused’s junior.
Murder by poison is statutorily defined as
1st degree murder
Conspiracy is completed when
Agreement is made to commit a felony, no overt act requirement
Is withdrawal a defense to conspiracy if conspirator alerts police?
No
What standard allows police officers to briefly detain and question someone
Reasonable articulable suspicion that criminal activity is afoot
What standard allows police officers to briefly detain and question someone
Reasonable articulable suspicion that criminal activity is afoot
Police may conduct a frisk if they have
Reasonable articulable suspicion that you are armed and dangerous and are committing or are about to commit a crime
Frisk is limited to a pat down of
person’s clothing
Police may search entire passenger compartment, unlock any containers in passenger compartment and frisk that person if they have
Reasonable suspicion that person may gain immediate access to weapon
Does probable cause to search a vehicle give police probable cause to search a passenger?
No, absent probably cause/reasonable suspicion to believe that person is armed and dangerous
Conspiracy elements
two or more individuals agree to commit a crime…No overt act requirement in VA…completed when agreement is formed.
Attempt
where a D intends to commit a crime, takes a substantial step towards its commission but fails to complete it
Robbery
taking and carrying away of another’s PP by force or threatened violence w intent to permanently deprive
conspirators are liable for finished crime of co conspirator if
crime was foreseeable even if he was not present
Attempt: Abandonment defense
abandonment is not a defense to attempt
Abduction occurs where
D by force or intimidation, seizes, takes, transports or detains another w intent to deprive them of their liberty
Accessory after the fact
person who knows a felony has been committed and thereby aids or assists a principal in the first degree or accessory before the fact avoid or escape prosecution
Principal in the first degree
perpetrator of the actus reus of the crime
Principal in the second degree
someone who is present at the commission of the crime, shares the principal in the 1st degree’s intent that the crime be committed and aids abets, encourages, assists or advises a P in the 1st degree in commission of the crime
Is concealing a felon after felony’s commission sufficient to warrant a conviction as a P in the second degree?
No, accessory after the fact
Accessory before the fact
someone who aids, abets, assists or advises the P in the 1st degree before the commission of a felony
Motion to Separate Witnesses
court is required to exclude the witnesses from the courtroom when not testifying except the complaining witness who may remain if it would not impair the conduct of a fair trial
When must motion to exclude evidence be raised?
in writing and filed 7 days before trial
An attempt to supress particular items of evidence, such as witness statements of ID or items of physical evidence must be made via
motion to suppress,,,,not motion to strike
Can a D raise suppression issues on a m2s?
no
Do you need an eye witness to observe firearm for Use of Firearm charge?
NO…not required to have eye witness observe the firearm or for firearm to be admitted into evidence….Can be established by circumstantial evidence
CLass 1 felony is punishable by
lfife imprisonment unless convicted party was under 18 or determined mentally retarded, in which case punishment is life and fine of no more than $100k
Class 2 felony is punishable by
life or not less than 20 yrs imprisonment and a fine of no more than 100k
Class 3 felony is punishable by
not less than 5 yrs and not more than 20 yrs imprisonment and a fine of no more than $100k
Class 4 felony is punishable by
not less than 2 yrs and not more than 10 yrs imprisonment and a fine no more than 100k
Class 5 felony is punishable by
not less than 1 yr and not more than 10 yrs imprisonment or in discretion of jury or judge not more than 12 months in jail and or fine up to $2,500
class 6 felony is punishable by
not less than 1 yr and not more than 5 yrears or in discretion of jury or judge not more than 12 months in jail and or a fine of not more than $2,500
Class 1 misdemeanor is punishable by
confinement in jail for not more than 12 months and or a fine not more than $2,500
Class 2 misdemeanor is punishable by
confinement in jail for not more than 6 months and or a fine of not more than $1,000
class 3 misdemeanor is punishable by
fine of not more than $500
Class 4 misdemeanor is punishable by
fine of not more than $250
Principal in 1st degree
person whose acts or omissions are the actus reus of the crime…the perpetrator….
Can be a principal in 1st degree if he arranges to have committed criminal act through innocent agent
Principal in 2nd Degree
person present at comission of crime and shares the principal in 1st degree’s intent that crime be committed or aids, abets, encourages, assists, or advises a principal in 1st degree in commission of crime …
Can P in 2nd degree be convicted and punished to same degree as P in 1st?
yes
Difference between P in 2nd degree and accessory before the fact
Accessory before the fact is not present during commission of the crime.
Accessory before the fact’s assistance may be in the form of
verbal encouragement, financial assiatnce, or physical assistance….
Accessory after the fact
Person who knows a felony has been committed and thereby aids or assists a P in the 1st degree or accessory before the fact AVOID OR ESCAPE PROSECUTION
Is accessory before the fact subject to punishment of crime P in 1st degree committed
yes
is accessory AFTER the fact subject to punishment that P in 1st degree committed
no1
Before an accessory may be convicted, it must be proven that Principal has
committed a criminal offense
Withdrawal of accessory
Person who aids or encourages the commission of a felony may before completion withdraw such aid and encouragement and not be criminally liable as long as withdrawal is evidenced by acts or words showing other crime participants that he opposes the conduct.
If the crime is completed after withdrawal, there must be an independent cause to
absolve the withdrawing party from criminal liability
Insanity in VA, d must prove
he was insane at time of the offense under either M’Naughten test or irresistible impulse test
M’Naghten test
because of his mental disease, he did not know that the nature and quality of the act or the wrongfulness of the act
Irresistible impulse test, D is not guilty if he
is able to understand the nature of his act is wrong but his mind has become so impaired by disease that he is TOTALLY DEPRIVED OF THE MENTAL POWER TO CONTROL/RESTRAIN HIS ACT
How to raise insanity defense
D must raise insanity defense and give notice to the Commonwealth’s attorney of his intention to put sanity in issue and present expert testimony at least 60 days before trial
Is voluntary intoxication a defense?
not unless D was so intoxicated that he was incapable of deliberation and premeditation per first degree murder
Involuntray intoxication is a defense so long as
intoxication serves to negate an element of general and specific intent crimes…
For intoxication To be considered involuntary, D must have
unwillingly and unconsciously ingested the intoxicant
Child under age of 7
cannot be convicted of a crime
CHild between 7 and 14
rebuttably presumed incable of committing a crime.
Child at least 14
can be tried as an adult
To rise to level of 1st dgree, Comm must show
malice or premediation exists and if shown, burden of producing mitigating evidene shifts to D
Aggravated murder
willful, deliberate and premediated killing of
1) any person in commission of an abduction committed w the intent to extort money
2) person for hire
3) person by a prisoner confined in a state or local correction facility
4) person in commission of robbery, attempted robbery, act of terrorism,
5) commission of or subsequent to rape, attempted rape, forcible sodomy
6) law enforcement officer
7) more than one person as part of same transaction
8) witness in a criminal case
9) person under age 14 by someone over 21
10) pregnant woman by person who has intet to involuntary terminate the pregnancy
11) person by another from order of a person engaged in a criminal enterprise
Murder by poison, lying in wait, imprisonment, starving is
1st dgree
Transferred intent murder
if one person intends to kill another but a 3rd person is killed instead, intent is transferred to 3rd person….does not matter that killing of 3rd person was unitintentional
Felony murder
murder in 1st degree defined as murder committed in commission or attempted commission of arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary, or abduction
May be accidental
malice
intent to kill or intent to inflict serious bodily harm in which death results
murder in second degree
killing with malice but no premeditation or deliberation
Felony homicide
Murder in 2nd degree and constitutes a killing of another accidentally or contrary to parties’ intent, while commiting a felony not enumerated in aggravated murder statute or felony murder
Prison time for killing a pregrnant woman w/ premeditation by one who has intent to terminate pregancy
at least 10 no more than 40
What class of felony is person who kills fetus guilty of
class 2 felony
Voluntary manslaughter
killing occurring in heat of passion or sudden mutual combat…
Adequate provocation: words
Words alone are not adequate provocation
Involuntary manslaughter
accidental, unintentional killing of another that occurs during D’s perpetration of an unlawful act that is not a felony or of a lawful act committed w criminal negligence
Involuntary manslaughter: DUI
person who unintentionally kills another as a result of driving a motor vehicle while under influence of alcohol drugs or other intoxicant commits involuntary mansalughter
if shows reckless disregard for human life he may be guilty of aggravated invol manslaughter
Involuntary manslaughter: Causation
must be a casual connection btwn unlawful act and death for involuntary manslaughter to apply
Larceny
taking of another’s pp by trespass w inten to permanently deprive person of property…
Grand larceny
i) larceny from another’s perosn of money or thing valued greater than $5
ii) simple larceny not from another’s person of goods and chattels w value of $1,000 or more
iii) simple larceny not from another’s person of a firearm, regardless of value
Petit larceny: felony or misdemeanor
misdemeanor…
Petit larceny
i) larceny from person of another of money or thing less than $5
ii) simple larceny not from person of another of goods and chattels of value less than $1,000
Organized retail theft
when one conspires or acts in concert w another person to commit larceny f retail merchandise w a value exceeding $5k aggregated over 90 day period w intent to sell stolen merchandise fro profit and either
i) receives or possesses any stolen retail merchandise while knowing or having reasonable grounds to believe the property was unlawfully obtained; or
ii) conspires or acts in concert w two or more other persons as an organizer, supervisor, financier, leader or manager to effectuate the transfer or sale of stolen retail merchandise for profit
Embezzlement
fraudulent use, concealment disposing of, or embexzzling of any commercial paper or tangible or intangible property that was
i) received from another person or for one’s employer
ii) received by virtue of one’s office or employmeny; or
iii) entrusted to one by another
False pretenses
when one obtains money, or any property subject to larceny by false pretense and w intent to defraud. Both title and possession must pass
Robbery
taking, w intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation
Extortion
taking property by threat of injury to character, person, or property of another
ii) accusing another of any offense
iii) threatening to report another as being illegaly present in the US
iv) knowingly destroying, concealing, removing, confiscating, withholding or threatening to withhold another’s passport or identification document
burglary
breaking and entering the dwelling home of another at night w intent to commit a felony or larceny therin
Burglary is a class 3 felony unless
person is armed w a deadly weapon in which case punishment is elevated to class 2 felony
Statutory burglarly
one enters at night without breaking or in daytime breaks and enters or enters and conceals himself in a dwelling or adjoining occupied outhouse or any building permanently affixed to realty, ship, vessel, river craft, railroad car, or motor vehicle used as a dwelling w intent to commmit murder, rape, robbery or arson or a misdemeanor except assault and B
Arson
malicious burning or use of an explosive device to destroy a dwelling house or other building where people usually dwell or lodge
Is an outhouse a dwelling?
Not unless it is adjoined to a dwelling, under same roof unless person lodges there at night
Knowingly or intentionally possessing a prohibited object or substance is unlawful if
D exercises control over such object or substance
Possession offense: Is D required to be aware that possession of object is illegal
no
Possession of controlled subject: dominion and control must be present long enough for D to
Cease such dominion and control
Two types of possessio
actual and constructive
COnstructive possession may be proven by
acts, declarations, or conduct of the accused from which a fair inference may be drawn that he knew if its existence at place where it was found….
not merely that he should have known of its existence
Accomodation defense to possession
D may establish that he gave, distributed, or possed a controlled substance only as an accommodation to another individual w/o intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon the substance….
BY PREPONDERANCE
Does accommodation defense absolve D of crime
no but may lessen penalty
Receipt of stolen goods
if person buys or receives from another person or aids in concealing any stolen goods w knowleedge that property is stolen he may be proceeded against for larceny even if Principal is not convicted
Simple assault and battery: felony or misdemeanor
misdemeanor but can be elevated to a felony based on status of the victim
Battery
unlawful application of force to another person that causes bodily harm or offensive touching to that person
Assault
an attempt to commit battery or intentionally placing another in apprehension of an immediate offensive touching
hate crime
if d intentionally selects victim of an a&b then it is elevated to class 6 felony
School employees: battery
If person commits a battery against a person he knows or has reason to know is a full-time or part-time employee of any public or private elementary or secondary school engaged in the performance of her duties, he commits a Class 1 misdemeanor punishable by a 15-day jail sentence with a two-day mandatory minimum.
If a firearm or weapon is used, the person must serve a six-month mandatory minimum sentence.
A&B on Family or household member: what kind of felony/misdemeanor
class 1 misdemeanor…elevated to class 6 felony if previously convicted of 2 similar offenses
A& B on Judge or law enforcement officer
class 6 felony 6 month manditory mim
A&B on healthcare provider
class 1 misdemeanor, 15 day jail sentence 2 day mandatory mim
Malicious wounding
maliciously shoots, stabs, cuts, wounds, or injures another w intent to main, disfigure, diable or kill him/..class 3 felony
aggravated malicious W occurs where
v is severely injured and suffers permanent and significant physical impairment or is pregant
Reckless endangerment
person w intent to injure another, intentionally throws an object capable of causing injury from a balcony, rooftop or a place high than 1 story
Use or display of firearm
person uses, attempts to use, or displays a firearm in a threatening manner while committing or attempting to commit inherently dangerous felony he commits a seperate offense
Attempt to posion
person administers or attempts to administer poison or a destructive substance with the intent to kill or injure another, he commits a felony
Adulteration of food
person adulterates or causes to be adulterated any food, drink, prescription, over-the-counter medicine, cosmetic, or other substance with the intent to kill or injure another who ingests, inhales, or uses such substance, she commits a felony
Hazing
person who causes bodily injury by recklessly or intentionally endangering the health and safety of a student at any school or upon any gang member or person seeking to become a member of any gang, club, or organization commits hazing
Kidnapping/abduction
i) Person by force, intimidation deception seizes, takes, transports detains or secrets another w intent to deprive the other person of his personal liberty
/subjects him to forced labor
Carjacking
intentionally seizing control of a motor vehicle w intent to deprive another of possession or control of the vehicle by means of assault or putting person in fear of serious bodily harm or by threat or presennting a firearm
Strangulation
person who impedes blood circulation of another by knowingly, intentionally, and umlawfully applying presure to neck of such person causing wound/injury
Rape
when one has sexual intercourse w another or causes person to enagage in sexual intercourse w another, against their will, by force, threat or intimidation; ii) through use of complaining witness’s mental incapacity; or iii) with child under age of 13
Rape Shield Statute: only way evidence re complaining witness’s prior sexual conduct is inadmissible at trial is
I) designed to explain the presence of semen, pregancny, disease or physical injury
ii) show absence of force, threat, or intimidation provided contact occurred within a time period reasonably proximate to the charged offense
ii) rebut evidence of prior sexual conduct introduced by teh commonwealth
Statutory rape
D carnally knowsa child is 13 or 14 is guilty of class 4 felony
someone who has sex with child aged 15, 16, or 17 guilty of class1 misdemeanor
If child consents to sexual intercourse and accused is a minor crime is reduced to
class 6 if consenting child is 3 or more yrs the accused’s junior; or
a class 4 if consenting child is less than 3 yrs the accused’s junior
Taking iNdecent liberties w a child
exposing genitalia or sexual propositions to child under 15
Bigamy
marriage to another person while still married to
Forgery
criminal offense to use, utter, or forge a public record, coin , note or bill…also criminal offense to use or posess any forged instruments or possess forged bank notes or coins knowing the same to be forged or w intent to employ them as true
Perjury
person who under a lawfully administered oath wilfully swears falsely to a matter… person who induces another to commit perjury is guilty of perjury…person who commits perjury cant hold public office
Bribery
gift, offer or promise to public officer or candidate for public office w intent to influence his actions
Obstructing justice
knowingly obstructing judicial officer, juror, CA, witness in performance of their duties…misdemeanor
False reports
knwoingly giving false report about commission of a crime to law enforcement officers w intent to mislead or interfere w law enforcement operations
Resisting Lawful arrest
intetionally preventing or attempting to prevent a law enforcement officer from lawfully arresting them
Solicitation
a command/attempt to persuade another to commit a felony…..
enhanced if solicitor is over 18 and person solicited is under 18
Conspiracy to Commit a felony
he agrees w another to commit a felony
Conspiracy: overt act
Va does not require an overt act be performed to complete a considpiracy…
Conspiracy: Withdrawal
Withdrawal cannot be a defense bc conspiracy completed once agreement was formed
co-conspirators can be convicted of crimes other co conspirators committed if
crime is reasonably foreseeable and natural consequence of conspiracy
Conspiracy: Can d be tried and convicted of substantive offense and conspiracy charge at trial?
yes but person who has already been convicted of substantive defense cannot later be convicted of that same offense later at trial for conspiracy
Attempt
intent to commit a crriminal act w an ineffectual overt act taken towards commission of intended crime
Attempt: ineffectual overt must be more than
preperatory
Attempt: merger
if principal crime is successfully completed, attempt merges into completed crime..
Factually impossibility is not a defense
Self defense
affirmative defense in Virginia that may be raised when a person reasonably apprehends bodily harm by another and exercises reasonable force to repel the assault.
A person may only use deadly force to defend themselves when
there are reasonable grounds to believe that the user of deadly force was in imminent danger of great bodily harm or death at time deadly force was used
Can deadly force be used to defend against an intruder in one’s home
yes but fear alone is not enough to justify
There is never an obligation to retreat before employing force unless
D is at fault or otherwise provoked the aggressor
When can aggressor use self defense
if he abandons the original attack by retreating to the extent he can safely do so and making known his desire for peace by word or act.
Can use force to defend property when
when no time to seek assistance from law enforcement, may take reasonable steps to protect property but not use deadly force
To use force to defend property, defender must
reasonably belive that real property is in immediate danger of unlawful trespass or PP is in immediate danger of being carried away and that the use of force is necessary to prevent either
Duress defense
D violates law bc of 3rd party’s unlawful threat that causes D to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law
Cannot use duress to justify
killing of innocent person
Entrapment
conception and planning of an offense by a law enforcement officer, and his procurement of its commission by a D who would not otherwise have committed that offense except for the trickery, perusasion or fraud of the officer….D cannot have predisposition to commit the cirme.
Criminal prosecutions must be held in
county or city where offense was committed
If the offense was committed within the Commonwealth but the city or county cannot be readily determined, venue is proper where
D resides, or if D is not a resident of the Commonwealth, where D was apprehended or in which any related offense was committed
Venue: Homicide where location of killining is unknown
where body/remains were discovered
Venue: injury in one county/death in another
can be prosecuted in either
Venue for larceny, embezzlement, forgery
in cnt/city where offense was committed or where D took stolen property to or where d was legally obligated to deliver the property
Computer crime venue
I) where any act in futherance occurred,
ii) owner has his PPB,
iii) d had control or possession of any proceeds,
iv) computer or network was accessed,
v) D resides or where computer was located
Where is venue proper for conspiracy
in any cnty/city where conspiracy was entered or any act in furtherance
Venue where crime is committed on a boundary
either
When can venue be raised
before verdict is rendered in jury trial or before finding of guilt in bench
Burden of proof for establishing venue
strong presumption
Warrantless arrest
officers have authority to arrest when D commits crime in their presence or they have probable cause to believe a crime has been committed
WHo may issue warrants
judge, magistrate or other authority having jurisdiction to issue criminal warrants as long as such officer is satisfied from a complaint and affidavit that there is reasonable and probable cause to issue the warrant.
Who may issue warrant sought to search a licensed attorney’d office for evidence of a crime committed by client
only CC judge
Search warrant may be issued for the search of
specified places, things or persons
Search warrant affidavit must:
describe the person, place or thing to be searched
2) persons or things to be searched for
3) briefly allege the material facts costituting probable cause
4) allege the crime or identity of person being arrested
5) allege the object, thing, or person searched for co
Warrant must be directed to
i) sheriff, sergeant or any law enforcement officer of the county, city or town where place to be searched is located
Search w/o a warrant
Gov officer may not search any place, thing or person w/o properly issued warrant
Vehicle Checkpoints permissible?
traffic checkpoints are generally permissible but police are prohibited from establishing checkpoints where motorvehciles are only vehicles stoppped
Stopping/searching/seizing based on odor of marijuana
police may not stop/search/seize solely based on odor of weed…evidence obtained in violation of this rule is inadmissible
What are things police cannot conduct a traffic stop for?
i) defective and unsafe equipment (Va Code Ann. § 46.2-1003);
ii) Without all brake lights or a high mount stop light (Va Code Ann. §§ 46.2-1014, -1014.1);
iii) With certain sun-shading materials and tinting films (Va Code Ann. § 46.2-1052);
iv) Without any working headlights between sunset and sunrise (Va Code Ann. § 46.2-1030);
v) With registration and inspection stickers that have been expired for less than four months (Va Code Ann. §§ 46.2-646, -1157); and
vii) With certain objects suspended in the vehicle
no evidence obtained based on such stops is admissible
after arrest by warrant, An arresting officer must bring the arrested party without unnecessary delay before a
a judicial officer who must immediately conduct a bail hearing, and either admit the accused to bail or commit him to jail
person who is held in custody pending trial or hearing, must be admitted bail by a judicial officer unless there is probable cause to believe that
(i) he will not appear for trial or other judicial proceedings or (ii) his liberty will constitute an unreasonable danger to himself, family or household members, or the public.
in felony cases, the accused is entitled to have a preliminary hearing to determine
whether there are reasonable grounds to believe he committed the offense and no indictment may be returned against him unless the accused waives this right in writing
Prelim: If the judge finds that there is sufficient cause for charging the accused but does not have jurisdiction to try the accused, judge must
certify the case to the appropriate court and commit the accused to jail or grant him bail
All pleadings filed by an attorney assure that it is
filed in good faith and not for delay
Grand juries function to
i) consider the indictment bills prepared by the Commonwealth attorney to DETERMINE IF PROBABLE CAUSE and return the indictment and ii) INVESTIGATE AND REPORT any condition that involves or promotes criminal activity in the community
How many members must be in Grand jury
at least 5 no more than 7 ppl over 18 yrs old and resident of Va for more than 1 yr and of county holding grand jury proceeding for 6 months
After grand jurors are sworn in, the judge must
give a charge instructing the grand jury to advice the ct after their consideration of the bills of indictyment as to whether to impanel a special grand jury to further investigate criminal activty
How many grand jurors are necessary to concur in making or finding an indictment or presentment
at least 4
A special grand jury may be impaneled by a circuit court upon
motion by CC or recommendatio of a minority of members of regular grand jury or upon request of COmmonwealth attorney to investigate and report any condition tending to promote or involve criminal activity
Special Grand jury MUST be impaneled by a CC upon
recommendation of a majority of regular grand jurors if ct finds probable cause to believe crime has been committed that needs further investigation
How many members must be in special grand jury
no less than 7 no more than 11
Special grand jury subpoena power
may subpoena witnesses to testify and produce papers, records, documents, or other tangible things…
Ct reporter in special grand jury proceedings
court reporter must be provided to record and transcribe all oral testimony taken. but cant b
record of proceedings may not be used in a subsequent proceeding unless a witness is charged w perjury
Criminal charges are filed by
indictment, presentment or information
Indictment is a
written accusation of crime, prepared by attorney for the Commonwealth and returned a true bill upon the oath or affirmation of a legally impaneled grand jury
Presentment
a written accusation of crime prepared and returned by a grand jury from their own knowledge or observation, w/o any bill of indictment laid before them
Presentment
a written accusation of crime prepared and returned by a grand jury from their own knowledge or observation., w/o any bill of indictment laid before them
indictment or information must contain a plain, concise and definite written statement that includes
i) the accused’s name,
ii) the charged crime,
iii) the county or city where the alleged offense occurred and
iv) the DATE that the d allegedly committed the offense.
f the judge rejects the plea agreement, he must
immediately recuse himself from any further proceedings on the matter unless parties agree otherwise
Conditional guilty plea reserves right on appeal to
review an adverse determination of a specified pretrial motion
Plea of guilty or nolo contendre may be withdrawn before sentencing if
defendant shows that the motion is made in good faith and proffers evidence of a reasonable basis for contesting guilt.
Plea of guity of nolo contendre may be withdrawn after sentencing only to
correct manifest injustice
Two or more offenses may be charged in separate counts of the same indictment or information as long as the charges are based on
STO or on two or more acts or transactions that are connected or parts of a common scheme or plan
Two or more defendants may be charged in the same indictment or information as long as
they are charged w participating in contemporaneous and related acts or in a series of acts constituting an offense
Speedy trial: if D is held in custody
5 months from date of probable cause determination
Speedy trial: if out of custody
9 months from date of probable cause determination
Speedy trial: if an appeal has been perfected from a misdemeanor or traffic infraction conviction and D has been continuously held in custody
5 months from conviction date
Speedy trial: If an appeal has not been perfected from a misdemeanor or traffic infraction conviction and the defendant has been continuously held in custody
9 months from conviction date
If D waived preliminary hearing, 5 and 9 month periods start on
date an indictment or presentment was found against D
If an indictment or presentment has been found, but an arrest has not been made, the five- and nine-month periods run from
arrest date
The speedy trial periods do not apply if the failure to try the accused was caused by:
i) accused’s insanity or confinement in a hospital for care and observation;
ii) Commonwealth’s witnesses being enticed or kept away or are sick/injured
iii) granting a separate trial by one indicted jointly for a felony
iv) granting of an accused’s continuance motion or by concurring with or failing to object to Commonwealth’s continuance motion
v) accused’s failure to appear
vi) natural disaster, act of god
Motions to suppress must be made
in writing and notice given to opposing counsel not later than seven days before a circuit court trial and cannot be appealed unless there is a final judgment on merits
How many days before trial must D give Comm notice to raise insanity defense
60 days
If the parties fail to comply with the discovery rules or court orders, the court may impose
sanctions, order compliance or grant a continuance to allow for more time for compliance
Is someone accused of a misdemeanor in GDC entitled to a jury?
no but entitled to bench trial…Accused tried in GDC may however appeal decision and receive a jury trial in CC
The defendant may waive his right to a jury trial upon the advice of his counsel, as long as
Comm attny and judge agree and ct determines before trial that waiver was made voluntarily and intelligently …D waives his right if pleas guilty
person is disqualified from serviving as a juror if he is
adjudicated incapacitated, convicted of treason, convicted of a felony or otherwise under legal disability
Persons who may request disqualification from jury service
I) ppl over 70;
II) those responsible for children 16 or younger or other impaired person who requires continuous care during normal court hours;
iii) breastfeeding mother;
Iv) anyone whos spouse is summoned to serve on same panel;
V) anyuone who is only person performing essential business that would cause the enterprise to close if the person served as a juror
Jury/panel size for felonies
at least 12 jurors chosen from a panel no fewer than 20
jury/panel size for misdemeanor
7 from a panel of no fewer than 13
of preemptory challenges in felony matters
4
of preemptory challenges for misdemeanor juries
3
How many preemptory challenges if two or more Ds are tried together
still 4
When a jury returns a verdict, veridtc must be
unanimous, signed by foreperson, returned by jury in open ct
If two or more defendants are jointly tried, the jury may return a verdict as to
those it can unanimously agree on
The defendant may be found not guilty of a charged offense but guilty of an offense or attempt to commit any offense that is
substantially charged or necessarily included in the charged offense
Can d be found ng of a felony but guilty as an accessory?
yes
If the defendant is acquitted of a felony offense, can he later be prosecuted for an attempt to commit or as an accessory to such felony?
NO
If there are several counts in an indictment and one or more of the counts is faulty, the defendant must
I) object or
ii) move the ct to instruct the jury to reject the faulty counts before a verdict is rendered …
if he does neither and a guilty verdict is rendered, judgment will be entered against the D if any count is good unless the court can plainly see that the verdict could not have been found on the good count
motion to set aside the verdict may be based either on
the sufficiency of the evidence or upon error committed during trial…must be filed no later than 21 days after final order
If a defendant is charged with a misdemeanor and fails to appear, can the case be tried?
yes before a judge but not jury
At any trial, the victim may remain in the courtroom and must not be excluded unless
ct determines that presence of V would impede the conduct of a fair trial
If v is a minor, ct may allow adult chosen by minor to be present in ct
Motion to strike should be granted if
evidence is insufficent as a matter of law to sustain a conviction
To preserve the question of sufficiency of the evidence for appeal, in a jury trial, D must
make a motion to strike at conclusion of all evidence or make a motion to set aside verdict
Can D be charged of same offense he was acquitted of?
No
Can D be tried for same offense if jury is hung?
Yes
Can D be tried for same offense if jury returns hung
yes
If ct dismisses the charges, dismissal will not bar subsequent prosecution of the charge unless
jeopardy attached at the earlier proceeding or the case was dismissed w prejudice
If the same act is in violation of two or more statutes, ordinances, or combination of both, conviction under one statute or ordinance is a
bar to prosecution under the others
how many days b4 trial must D request sentencing by juror
30 days before
If the court deviates from the discretionary sentencing guidelines, it must
file written explanation for its departure
A district court conviction for a non-felonious offense may be appealed as of right to the circuit court within
10 days of conviction even if conviction was based on guilty plea and new trial is held de novo
A CC conviction for a crime may be appealed as of
right to VA Ct of APP
Notice of appeal must be filed within
30 days of entry of final order
Standard of Review on appeal: When a party challenges a conviction as being contrary to the evidence, the conviction cannot be set aside unless
it is plainly wrong or without evidence
When a party challenges a conviction on the basis that evidence was improperly admitted at trial, the court will consider all the evidence and determine whether the evidence is
sufficient to sustain a conviction..viewed in light most favorable to the commonwealth
If the reviewing court determines that evidence was improperly admitted and the error was not harmless, case will be
remanded for new trial
Actual possession
Having physical custody or control
Constructive possession
Knowledge
- d has knowledge Drugs were present
Intent
- D intends possess
Control
-ability to assert dominion and control
Is Mere knowledge that crime will result enough for an accessory before the fact conviction?
no
General intent
when someone intends to perform an act, but doesn’t intend the consequences of that act
Difference between felony murder and aggravated murder
Aggravated is willful, deliberate and intentional, premeditated
Police may conduct an inventory search so long as purpose is not to
gather incriminating evidence against the owner and inventory search is conducted pursuant to standardized procedures
Only _ is required for statutory burglary when it is committed at NIGHT, not breaking
entering
In determing whether to deny motion for joint trial, ct considers whether
moving party would be prejudiced by the joint trial… ie whether charges are similar
