Criminal Procedure

Question 1

Rule on Arrest

Answer 1

Virginia has codified the common law rule on arrest, with some distinctions.
Felonies
An officer may arrest any person who commits any crime in the officer’s presence, or whom the officer has reasonable grounds or probable cause to suspect has committed a felony not in the officer’s presence.
Other Crimes
An officer may arrest for an alleged misdemeanor not committed in the officer’s presence when:
* The officer receives a telephone or radio message that a warrant for such an offense is on file; or
* The offense involves assault and battery and the arrest is based on probable cause upon the reasonable complaint of an eyewitness
Virginia Essay Discussion
Virginia’s rules are linked to the old common law rules, but there is a growing trend toward exceptions to misdemeanor rules so long as it involves a crime that might involve violence. Identify the common law and codified rules. Discuss strict application. Address allowing possible exceptions.
Statutory Exceptions to Warrant Requirement
In Virginia, no warrant is needed to arrest a suspect for the following crimes: motor vehicle crimes, shoplifting, public drunkenness, and assault and battery against a family or household member.
An officer also does not need a warrant to arrest a suspect when the officer receives a telephone or radio message that there is a warrant on file for the offense.

Question 2

Grand Jury Types

Answer 2

Grand juries are used in Virginia. There are 3 types.
* A regular/charging grand jury (5 to 7 jurors) considers bills of indictment prepared by the attorney for the Commonwealth and determines whether there is sufficient probable cause to return a true bill.
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* A special/investigative grand jury (7 to 11 jurors) investigates and makes reports on criminal activity in the community or misfeasance of governmental authority by agencies or officials. The report is filed with the court and then the grand jury is discharged.
* A multi-jurisdictional grand jury acts across jurisdictional lines within Virginia to investigate and return indictments.

Question 3

Speedy Trial Statute

Answer 3

Virginia’s speedy trial statute provides that an accused is forever discharged from prosecution if the accused committed a felony and trial is not commenced within the following time periods:
* If the defendant is in custody, 5 months from the preliminary hearing
* If the defendant is not in custody, 9 months from the preliminary hearing
Commencement of Trial
For speedy trial purposes, a trial is deemed commenced at the point when double jeopardy attaches or when a plea of guilty or nolo contendere is tendered by the defendant.
Tolling Events
The speedy trial time periods do not run if failure to try the accused is caused by 1 of the following reasons: insanity, escape, witness issues, separate trials, hung jury, natural disaster, continuance on motion by accused, or appeals.
Waiver
An accused waives the right to a speedy trial by:
* Failing to invoke it before trial
* Failing to oppose a motion for continuance

Question 4

Number of Jurors

Answer 4

Virginia requires 7 jurors for misdemeanor trials and 12 jurors for felony trials.

Question 5

Peremptory Challenge Limits

Answer 5

In Virginia, both sides have unlimited challenges for good cause.
In felony cases, both sides are allowed 4 peremptory challenges.
In misdemeanor cases, both sides are allowed 3 peremptory challenges.

Question 6

Civil Admissibility of Nolo Contendere Plea

Answer 6

In Virginia, the defendant’s plea of nolo contendere is admissible in civil litigation against the defendant.

Question 7

Conditional Guilty Plea

Answer 7

Conditional guilty pleas are available only in felony cases in Virginia.