Criminal Law/Procedure Flashcards
What is the effect of a motion to exclude witnesses?
Either party may move and, if they do, the court is required to exclude the witnesses
* Exception–“complaining” witnesses (i.e., victims) can remain unless the court finds that the presence of the victims would impair the conduct of a fair trial
Lexbar
What is the standard for finding probable cause?
PC exists where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, would lead a reasonable officer to believe: (1) that a crime has been committed, and (2) that the arrestee is the one that committed it
Lexbar
When is a “show-up” idnetification procedure not overly suggestive?
When the witness has sufficient time and ability to look at the suspect and is not pressured into identifying someone
Lexbar
When must motions to suppress be filed in circuit courts?
At least seven days prior to trial and must be made in writing along wit notice given to opposing counsel
* Exception–the Circuit Court is empowered, in its discretion, to permit these motions to be made at trial (but D should ask court to rule on the motion)
Lexbar
What is the rule on firearms for sufficiency of the evidence?
It is not necessary that the victim actually see a firearm to convict for using a firearm in the commission of a felony–can be proved by circumstantial evidence
Lexbar
What is the presumption regarding homicide in trials?
Each homicide is presumed to be second degree
When is a traffic stop lawful?
It’s an investigative stop and must satisfy Terry
* Reasonable, articulable suspicion based on specific facts that criminal activity is afoot (totality of circumstances approach)
* A traffic violation is sufficient to conduct a traffic stop
July 2014
What must the Commonwealth show in order to convict of possession of drug paraphrenelia where the drugs are not found directly on D (i.e., constructive possession)?
Must show D was aware of both the presence and character of the item and that it was subject to his dominion and control
* Mere proximity insufficient
July 2014, Feb 2020
How can you distinguish between a misdemeanor and felony?
A misdemeanor cannot exceed 12 months in jail or a fine of $2,500
* If greater penalty, it’s a felony
July 2014
What is a conspiracy?
An agreement between two or more persons by concerted action to commit a crime
* Proof of an act in furtherance not necessary for conviction of the crime which was the object of the conspiracy
July 2015, July 2018
What does withdrawal require in Virginia?
A person clearly states to the other co-conspirators the person’s withdrawal from the conspiracy and do all that they can do to stop the crime (e.g., informing authorities, convincing others to stop, etc.)
July 2015
What is a co-conspirator’s liability?
Liable (before withdrawal) for all acts committed by co-conspirators done to further the conspiracy
* Conviction (or trial) of co-conspirator NOT necessary
July 2015
What is the standard for attempt in Virginia?
Attempt occurs when someone: (1) has the specific intent to commit a crime and (2) takes a direct act that falls short of committing the ultimate crime
* Lower standard than “substantial step” from common law
July 2015
What is needed to show abduction?
The defendant has control over the victim and forces them into a place against their will
* No asportation crime
* General intent
* Can argue there is a certain amount of restraint inherent in commission of robbery (and don’t restrain any more than necessary for commission of robbery)
July 2015
What is the M’Nahgten test?
Provides for D’s acquittal by reason of insanity if (1) he has a disease of the mind causing a defect of reason (2) so that at the time of his actions he lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions
