Criminal Procedure Flashcards
What is an Alford plea?
defendant is unwilling to admit guilt, but there is factual evidence of guilt
avoid a harsher penalty
When must a motion to exclude evidence based on probable cause to arrest without a warrant or search be raised?
7 days prior to trial
How must notice must the defense provide of intent to use insanity defense?
60 days before trial
In a felony criminal case, an arraignment is not necessary when?
Waiver by accused
In a misdemeanor criminal case, an arraignment is not necessary when?
Waived by accused or counsel
Upon failure of accused to appear
How long does a defendant have to withdrawal guilty plea?
21 days after entry of final order
Does a guilty plea waive the claim of ineffective assistance of counsel in a criminal case?
No.
Circumstances that defendant may be convicted of capital murder in VA?
1) abduction with intent to extort money; 2) for hire; 3) by an inmate; 4) during an armed robbery; 5) during rape; 6) killing of police or judge; 7) witness under subpoena; 8) killing of multiple people in same act; 9) killing of multiple people within 3 years; 10) pregnant women; 11) children under 14; 12) during act of terrorism
What insanity defense does VA follow?
M’Naghten Rule (unable to distinguish right from wrong) and
Irresistible impulse test (unable to control or conform conduct)
What is the standard of proof necessary to overcome the presumption in a criminal case that subsequent confessions are tainted following an involuntary confession?
Clear and convincing evidence
In a criminal case, what must a jury verdict include?
unanimous
in writing
signed by foreman (not all jurors)
returned by jury in open court
Is voluntary intoxication a defense to specific intent crimes in VA?
No
Could be a defense on multi-state
Criminal procedure in VA is governed by what?
1) VA constitution
2) VA code of criminal procedure
3) rules of Supreme Court
In a criminal proceeding, an indictment must contain?
1) name of accused
2) description of offense - citing statute
3) where act was committed - city/county
4) when the act was committed - date
A conviction based on an involuntary confession that was erroneously admitted is reviewed under what standard on appeal?
Harmless error - show that there was overwhelming evidence of guilt
How long can a shopkeeping detain a suspected shoplifter before police arrive?
one hour
When someone is convicted or perjury they are prohibited from doing what?
1) holding office under VA constitution
2) serving as a juror
What is the standard of proof for revoking bail upon a finding that accused will not appear or is a danger?
probable cause
In VA a defendant may be convicted of petit larceny if the value of the item is less than ____.
$200
When the jury returns a verdict of guilt, how long does the court have to set aside of the verdict for error committed during trial?
21 days on motion of accused.
Is there a right to appeal for criminal cases?
No appeal right for criminal convictions
Goes to the Virginia Court of Appeals
If a criminal conviction is appealed, which court is the case taken to in VA?
Virginia Court of Appeals.
Who owns the martial privilege in criminal cases in VA?
testifying spouse
Is there a requirement that one spouse has to consent to the other spouse being compelled to testify in a criminal case in VA?
No requirement. Privilege belongs to the testifying spouse.
If evidence is obtained in violation of the fourth amendment how should a court rule on a motion to dismiss the charges?
Deny the motion.
Remedy is to suppress the evidence.
Does a criminal defendant have a right to a trial by a nonjury (bench trial)?
No unilateral right, need approval from court and judge, and must plead not guilty
If a minor is found guilty by a jury can the minor have the judge decide the sentence?
Yes, unless minor has been previously convicted and sentenced as a minor
Is a request to consult with family, friends or others an adequate substitute for a request to consult an attorney once Miranda rights are given?
No. May constitute a waiver of Miranda.
Are involuntary confession admissible in VA?
No. VA follows Wigmore rule and involuntary confessions are inadmissible and a violation of the Due Process Clause of 14th Amendment.
What is needed to show a confession is voluntary?
Commonwealth’s Attorney needs to show by a preponderance of the evidence that the waiver was knowing, voluntary, and intelligent.
Judged based on totality of circumstances.
Which court in VA has jurisdiction over minors under 18 accused of a committing acts that would be crimes if committed by adults?
Juvenile and Domestic Relations Court.
When is transfer from a Juvenile and Domestic Relations Court to a circuit court discretionary?
When there is probable cause that minor is at least 14 years old and the accused crime is not capital murder
Once a minor is tried and convicted in circuit court as an adult, what is the effect?
Minor must always been tried as an adult.
Juvenile and Domestic Relation Court loses jurisdiction.
Are interlocutory appeals in criminal cases permitted in VA?
No, except for appeals by the Commonwealth attorney on pretrial and pre-jeopardy rulings.
Which courts in VA have original jurisdiction over misdemeanors?
Courts not of record - General district courts.
Who decides whether the accused is indigent and counsel must be appointed?
Court after hearing oral evidence, the court must appoint counsel
Usually occurs at arraignment
If counsel is appointed in a criminal case, who long does the appointment last?
All proceedings against accused, including any appeals.
Last until relieved or replaced by other counsel.
Does plain error or harmless error test apply to an involuntary confession?
Harmless error - conviction will not be overturned if the government can show that there was other overwhelming evidence of guilt
If a confession is the result of an illegal search, is the confession admissible?
Generally inadmissible, but consider totality of circumstances such as whether Miranda warnings were given, temporal proximity, intervening circumstances, and purpose of police misconduct.
If a confession is the result of an illegal arrest, is the confession admissible?
Generally inadmissible, but consider totality of circumstances such as whether Miranda warnings were given, temporal proximity, intervening circumstances, and purpose of police misconduct.
Does the privilege against self-incrimination apply to blood samples?
No - privilege against self-incrimination is limited to defendant’s communications “testimonial evidence”
Function of a regular grand jury is to?
consider bills of indictment prepared by the Commonwealth’s attorney
- if sufficient probable cause to return such indictment “a true bill”
- between 5 and 9 members
If a regular grand jury finds probable cause for a bill of indictment, what does it return?
a true bill
What is the function of a special grand jury?
Investigate and report
between 9-11 members
What happens after a special grand jury files a report of its findings?
Commonwealth attorney may rely on findings to prepare a bill of indictment and present that bill to a regular grand jury
What is a presentment in a criminal case?
Written accusation of crime prepared and returned by regular grand jury from own knowledge or observation without a bill of indictment laid before them
A person may not be tried for a felony unless ___.
an indictment or presentment has first been found by a regular grand jury, unless accused waives indictment or presentment
May a person who is arrested for a felony be denied a preliminary hearing to determine whether there are reasonable grounds to believe a crime has been committed?
No - statutory right which may be waived if not raised.
What words must the indictment contains for alleging murder?
feloniously did kill and murder
- means, method, or intent need not be alleged
After the preliminary hearing, when will the accused be discharged if the trial is not commenced?
a) five months if accused is in custody
b) nine months if accused is not in custody
- trial commences once jeopardy attaches
Can an accused waive his right to a speedy trial by failing to oppose a motion for continuance?
Yes.
Does a plea of nolo contendere waive all defenses?
Yes, except those based on jurisdiction.
- plea of nolo contendere is neither a confession of guilt or a declaration of innocence; always court to consider defendant guilty to impose a sentence
How long does a defendant have to withdraw a plea of guilty or nolo contendere?
before a sentence is imposed or imposition of sentence is suspended; or within 21 days after final order
Does a guilty plea waive a claim of ineffective assistance of counsel?
No.
May a state retry a defendant whose first trial ends in a hung jury?
Yes.
When is a double jeopardy defense waived?
later of 7 days before second trial is to begin or time prior to trial as the grounds for the motion arise
In VA, does the prosecution for substantive offense bar a later prosecution for conspiracy to commit the offense?
Yes.
If a criminal defendant is successful on appeal may he be retried on a higher offense than that of which he was convicted in the first trial?
No.
What is a writ of actual innocence?
VA Supreme Court may issue writ of actual innocence based on new testing of human biological evidence.
What must a sheriff do to charge a party with a felony?
1) may make an immediate arrest without a warrant (need probable cause)
2) bring arrestee to court for determination of incarceration pending trial or admission to bail
3) ask Commonwealth attorney to prepare a bill of indictment for presentment to regular grand jury
May the suspect be tried upon an arrest warrant if he waives the right to indictment?
Yes.
Must a sheriff obtain an arrest warrant if the misdemeanor was not committed in the sheriff’s presence?
Yes.
What should counsel do to preserve rights on appeal when testimony of a witness is objected to and sustained by the judge?
Object to the ruling and make a proffer of what the evidence would be so that the circuit court can determine if there is reversible error.
If a defendant files a motion for a presentence report and it is denied, what is the result?
Must be reversed. Statutory mandated that defendant should properly request and receive presentence report.
What it is a presentence report in a criminal case in VA?
When person is convicted of felony, the defendant may request a presentence report prepared by probation officer to thoroughly investigate and report on the history of the accused and all other relevant facts
When must the probation officer supply the defendant with the presentence report?
5 days prior to the presentation of the report in open court.
Accused has right to cross-examine and present additional facts
When a person is charged with driving while intoxicated and reckless driving growing out of the same act or acts, and in convicted of one, what must the court do?
Dismiss the other.
Do defendants in VA criminal proceedings have an absolute right to separate trials?
No. Commonwealth may make motion for good cause to trial defendants jointly unless the joint trial would cause actual prejudice to defendants.
If a minor is properly tried and convicted, how is the sentencing handled?
Court decides the sentence
Unless the minor has previously been convicted and sentenced as an adult.
How are criminal cases handled in VA?
Jury trials are bifurcated into a guilt phase and a sentencing phase.
Jury’s sentence is merely a recommendation and judge is not bound
Is the court required to exclude witnesses in a criminal proceeding until the witness is called as witness?
Yes on motion of either party. Complaining witness may remain in the courtroom unless there is prejudice
Can the defendant make a motion on the conclusion of the Commonwealth’s case in chief to exclude evidence based on an illegal arrest?
No. Must be raised at least 7 days before trial.
