Criminal Procedure

Question 1

Under the 5th Amendment, an incriminating statement obtained as the result of custodial interrogation…

Answer 1

…may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights).

Question 2

A defendant [can/cannot] be tried for conspiracy and substantive offense for the same T/O at a later trial.

A defendant [can/cannot] be tried for conspiracy and substantive offense for the same T/O at the same trial.

Answer 2

[cannot]

[can]

Question 3

Two or more offenses by the same defendant may be charged in separate counts of the same indictment or information as long as the charges…

Answer 3

… are based on the same act, transaction, or on two or more acts or transactions that are connected or parts of a common scheme or plan.

Question 4

Upon motion of […], the court may order multiple defendants charged with participating in contemporaneous and related acts or in a series of acts constituting an offense jointly tried unless […].

Answer 4

[the Commonwealth]

[it would prejudice the defendant]

If prejudice is present, the court must order the prejudiced defendant severed.

Question 5

What is an Alford plea?

Answer 5

An “Alford” plea is a plea in which a defendant, without admitting guilt, admits that the Commonwealth has sufficient evidence by which the defendant could be convicted beyond a reasonable doubt.

Question 6

What is an “ask first, warn later” technique, and is it generally permissible?

Answer 6

The “ask first, warn later” technique, where officers question without Miranda warnings and then issue warnings to repeat statements, is generally not permissible as it undermines the suspect’s Fifth Amendment rights.

Question 7

An unreasonable search occurs when the government…

Answer 7

…(i) invades a place protected by a reasonable expectation of privacy, or (ii) physically intrudes upon a constitutionally protected area to gather information.

Question 8

A police officer may seize an item in plain view as long if…

Answer 8

(i) the officer is lawfully on the premises,
(ii) the incriminating character of the item is immediately apparent, AND
(iii) the officer has lawful access to the item

Question 9

A search warrant grants officers authority to search only the…

Answer 9

…places and persons named in it.

Question 10

In considering a motion to strike out all the Commonwealth’s evidence, all inferences that a jury might fairly draw from the Commonwealth’s evidence […], unless those inferences would be strained, forced, or contrary to reason.

Answer 10

[must be drawn in the Commonwealth’s favor].

The motion should be granted if the evidence is insufficient as a matter of law to sustain the conviction.

Question 11

Under what conditions may a defendant waive their right to a jury trial?

Answer 11

The defendant may waive his right to a jury trial upon the advice of his counsel, as long as the Commonwealth attorney and the judge agree and the court determines before trial that the waiver was voluntarily and intelligently given.

Question 12

The same jury [may/may not] decide both guilt and the sentence.

Answer 12

[may]

But the Judge, upon consent of the defendant and the Commonwealth, can be allowed to determine the sentence.

Question 13

the Commonwealth bears the burden of proof [by what standard?] that a confession was made after (i) a waiver of the Miranda warnings, and (ii) that the confession was voluntary.

Answer 13

[beyond a reasonable doubt]

Question 14

Ho does a court assess whether a waiver of Miranda was voluntary?

Answer 14

A review of voluntariness is based on the totality of the circumstances, including the time, length, place, and presence of others.

The defendant’s age, state of health, education, and intoxication are all factors in determining the coercive nature of the confession.

Question 15

Under the Sixth Amendment, a defendant has the right to […] adverse witnesses, and to […] adverse witnesses.

Answer 15

[directly encounter and cross-examine]

[be present at any stage of the trial that would enable the defendant to effectively cross-examine]

A denial of the opportunity to cross-examine a prosecution witness with regard to bias violates the Confrontation Clause.

Question 16

What are the rules for jurisdiction over juveniles?

Answer 16

JDRC courts handle cases involving juveniles under 18 accused of crimes, losing jurisdiction if the case is transferred to the circuit court.

For juveniles 14 or older charged with a felony, the court may transfer the case to the circuit court if probable cause is found, the child is competent, and evidence shows the child is not suitable for juvenile court.

The court must hold a preliminary hearing for juveniles 16 or older charged with serious felonies, and if probable cause is found, the case is certified to the circuit court.

Transferred cases are tried as if the juvenile were an adult, with sentencing determined by the court, allowing juvenile or adult sentences for nonviolent felonies and adult sentences, possibly suspended, for violent felonies.

Question 17

What is a stop and when may a police officer stop someone?

Answer 17

A stop is a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest.

A police officer may stop a person when the officer has reasonable suspicion, based upon articulable facts and in light of the totality of the circumstances, that the detainee is involved in illegal activity

Question 18

Evidence seized during a search in violation of the Fourth Amendment is…

Answer 18

…inadmissible against the victim of the search.

Question 19

What are the seven exceptions to the search warrant requirement?

Answer 19

(1) SITA
(2) Exigent Circumstances
(3) Stop and Frisk
(4) Automobile Exception
(5) Plain View
(6) Consent
(7) Warrant authorizing wiretapping

Question 20

Who can consent to a search and must it be knowing and voluntary?

Answer 20

Anyone with actual or apparent authority over property. (This includes a bailee).

Yes, of course it must be knowing and voluntary. Were you really about to say no??

Question 21

A police officer who witnesses a traffic infraction has…

Answer 21

…probable cause to stop the car.

Question 22

Under the automobile exception, the police may search anywhere in a car…

Answer 22

…that they believe there to be contraband or evidence of a crime, including the trunk and locked containers, so long as they have probable cause to do so.

Additionally, the use of a drug-sniffing dog on the car does not violate a reasonable expectation of privacy.

Question 23

After the conclusion of a traffic stop, absent reasonable suspicion, police extension of the stop in order to conduct a dog sniff …

Answer 23

…violates the Fourth Amendment’s protection against unreasonable seizures.

Question 24

Under the exclusionary rule, evidence seized during an unlawful search cannot constitute proof against the…

Answer 24

…victim of the search.

Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary “derivative evidence” discovered as a result of the primary taint, also known as the “fruit of the poisonous tree.”

Question 25

Under the “plain feel” exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband), then…

Answer 25

…the officer may seize the evidence.

Question 26

A frisk must be predicated on…

Answer 26

…reasonable suspicion that the suspect has a weapon.

Question 27

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if:

Answer 27

(i) the police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons, AND

(ii) the search of the passenger compartment is limited to those areas in which a weapon may be placed or hidden.

Question 28

In Virginia, offenses that are punishable by death or confinement in a state correctional facility are […].

Answer 28

felonies

Question 29

Interrogation refers not only to express questioning, but also to…

Answer 29

…any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.

Question 30

Custody is a substantial seizure and is defined for Miranda purposes as either a formal arrest or…

Answer 30

… a restraint on freedom of movement to the degree associated with a formal arrest.

If there has been no formal arrest, the question is whether a reasonable person would have believed he could leave, given the totality of the circumstances.

Question 31

The court *may *upon its own motion and must upon the motion of any party, require the exclusion of all witnesses except the […] and the […]

Answer 31

[victim] and the [defendant].

HOWEVER, at any trial the victim may remain in the courtroom and shall not be excluded, unless the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial.

Question 32

Defense motions or objections seeking the suppression of evidence seized during illegal searches and seizures must be…

Answer 32

…made in writing and notice given to opposing counsel not later than seven days before a circuit court trial.

Question 33

Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment may not…

Answer 33

… be introduced at trial to prove guilt.

Question 34

A criminal defendant can appeal a final verdict or decision from the circuit court to the Virginia Court of Appeals [by petition/as of right].

A defendant should file a Notice of Appeal within […] days from the date of the order being appealed.

Answer 34

[as of right]

[30]

A copy of the Notice of Appeal must also be sent to the Court of Appeals’ clerk’s office, as well.