Criminal Law & Procedure

Question 1

A conspiracy is

Answer 1

an agreement between two or more persons by concerted action to commit a crime.

Question 2

Conspiracy - overt act?

Answer 2

Proof of an overt act in furtherance of the conspiracy is not necessary for a conviction.

Question 3

In Virginia, the crime of conspiracy is complete when

Answer 3

the parties agree to commit an offense.

Question 4

In a criminal trial, where either attorney makes a Motion to Separate the Witnesses:

Answer 4

The witnesses shall be excluded from the courtroom when not testifying, except the complaining witness who may remain if it would not impair the conduct of a fair trial.

Question 5

Attempt

Answer 5

One who intends to commit a crime and commits a direct, but ineffectual act towards commission of the crime, has committed the crime of an attempt.

Question 6

No Virginia case recognizes __________ as a defense to the crime of attempt

Answer 6

abandonment

Question 7

Motions seeking to exclude evidence, must be

Answer 7

raised in writing before trial by motion filed and notice given to opposing counsel not later than seven days before trial in circuit court.

However, the circuit court is empowered, in its discretion, to still permit these types of motion to be made at trial, but the defendant needs to make a motion for the court to make an exception.

Question 8

A “show-up” identification procedure is not overly suggestive (and does not violate the Ds due process) when

Answer 8

the witness has sufficient time and ability to look at the suspect and is not pressured into identifying someone.

Question 9

Is it necessary that a victim actually see a firearm to convict for using a firearm in the commission of a felony?

Answer 9

It is not necessary that the victim actually see the firearm to convict for using a firearm in the commission of a felony - this could be proved by circumstantial evidence.

Question 10

A violation of the Fourth Amendment, if one occurred, should only result in the

Answer 10

suppression of evidence that resulted from the violation.

Question 11

The Fourth Amendment protects persons from

Answer 11

unreasonable searches and seizures by government actors

Question 12

The US Supreme Court has held that police officers may make an arrest without a warrant if the officers have

Answer 12

probable cause to believe the person had committed a crime.

Question 13

Probable Cause Rule

Answer 13

The inquiry considers the totality of the circumstances and probable cause exists if the officer has knowledge that would warrant a reasonably prudent person to believe that the person has committed or is committing a crime.

Question 14

If information the police receives is reliable, as it was not anonymous,

Answer 14

no additional corroboration is necessary.

Question 15

Searches without a warrant are presumptively

Answer 15

unreasonable BUT there are exceptions

Question 16

The automobile exception allows the warrantless search of an automobile because

Answer 16

vehicles are inherently movable, and subject to disappearing, especially when officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime.

Question 17

The Fifth Amendment protects a person’s right

Answer 17

not to incriminate oneself.

Question 18

Miranda v. Arizona and it progeny require

Answer 18

that once a person is placed in custody that person must be informed of his right to remain silent before interrogation is commenced.

Question 19

The Miranda requirement applies also to

Answer 19

statements or other actions by police that are designated to elicit a response.

Question 20

A person is in custody

Answer 20

once their freedom of movement is restrained.

Question 21

Does a defendant have the constitutional right to demand a trial by a judge?

Answer 21

No. While a defendant has
the right to a trial by jury under the Sixth Amendment, he does not have a constitutional right to demand a trial by a judge. Pope v. Commonwealth, 234 Va. 114 (1987), O’Dell v. Commonwealth, 234 Va. 672 (1988).

Question 22

Does the government’s ability to veto the right of a defendant to waive a jury trial violate a defendant’s constitutional rights?

Answer 22

No constitutional right is violated by the government’s ability to veto the right of a defendant to waive a jury trial. See Singer v. U.S, 380
U.S. 24 (1965), Vines v. Muncy, 553 F.2d 342 (4th Cir. 1977).

Question 23

A Juvenile has the same rights to waive a jury trial as

Answer 23

an adult.

Question 24

A jury trial may only be waived with the consent of

Answer 24

the defendant, the Commonwealth, and the court.

Question 25

Charging a minor as an adult -

Age requirement?
Where must the proceedings begin?
For non-violent offenses vs. violent offenses?
For homicide charges?

Answer 25

In Virginia, a minor over the age of 14 can be tried as an adult under certain circumstances.

In each of these circumstances, the proceedings against the minor must begin in Juvenile and Domestic Relations Court (JDR).

For a non-violent offense, JDR has discretion upon the Commonwealth’s motion to certify the charges.

For violent felonies and third controlled substance offenses where the minor is sixteen or seventeen, JDR must certify the charges on the Commonwealth’s motion.

For homicide charges where the minor is sixteen or seventeen, JDR must certify the charges regardless of the Commonwealth’s motion.

Question 26

Entrapment exists where the evidence shows that

Answer 26

law enforcement convinced an otherwise innocent person to commit a crime, as opposed to merely affording a criminal the opportunity to commit a crime he or she would have committed anyway.

So 2 elements:

(1) inducement AND
(2) predisposition

Question 27

In a entrapment defense, the evidence must show that the defendant was not

Answer 27

predisposed to commit the crime and that the persistence of law enforcement overcame the defendant’s will.

Question 28

In Virginia, burglary is the

Answer 28

breaking and entering of the dwelling house of another at night time with the intent to commit a larceny or felony. Burglary in Virginia is complete when entry is made with felonious intent.

Question 29

Burglary breaking element

Answer 29

Breaking means using any element of force against the dwelling house, without permission, to gain entry. The force does not need to cause damage.

Breaking can be actual or constructive. Actual breaking is using physical force to enter the dwelling house. Constructive breaking occurs when the offender uses threats, fraud or conspiracy to cause the structure to be opened.

Examples:

Pushing a door open or even using a key to unlock a door without permission can be considered a breaking in Virginia.

Constructive Breaking by Threat occurs by threatening the occupant of the dwelling house to provide access to the structure.

Constructive Breaking by Fraud is when the offender caused the occupant to provide access by fraud.

Constructive Breaking by Conspiracy occurs when an occupant permits access to others without the right to do so.

Question 30

Burglary night time element

Answer 30

between sunset and sunrise

Question 31

Burglary dwelling house element

Answer 31

A structure is a dwelling house if a person usually lodges there at night. The dwelling is of the occupant, not of the owner, and the occupant does not need to be present at time of the Burglary for a conviction.

Question 32

Joinder of defendants is at the

Answer 32

discretion of the court and the the court would consider whether the defendant would be prejudiced by the joint trial

Question 33

An extension of a traffic stop in order to conduct a dog sniff is

Answer 33

a violation of the Fourth Amendment.

Question 34

Is an officer’s motive for stopping a vehicle relevant?

Answer 34

No. If officers have probable cause to believe a
traffic violation was committed, their actual “motive”
for making the stop is irrelevant.

Question 35

The bailee of a vehicle’s expectation of privacy and authority to consent to searches

Answer 35

A bailee of the vehicle has a reasonable expectation of privacy as to the vehicle and therefore has standing to object to its search. Similarly, as bailee, they also have lawful authority to consent to a search of the vehicle. If a bailee voluntarily gives their consent to an officer to search the vehicle without limitation as to scope or place, the officer could look anywhere in the vehicle including the floorboard and glove compartment.

Question 36

Drug Possession Analysis

Answer 36

Regarding drug possession, neither the exclusive possession of the vehicle or that the D sat within a few feet of the drugs is dispositive but each supports a conviction.

Even if another’s prints and DNA are on the bag container, ownership of the drug is not an element of the offense.

**Actual or constructive possession of the drug with knowledge of its character by one who exercises dominion and control of the drug meets the requirements for conviction.

Question 37

Is proof of ownership needed for possession of a firearm by a convicted felon?

Answer 37

Only possession of the firearm is required to convict, rather than proof of its ownership.