Criminal Procedure

Question 1

What are the search and seizure issues?

Answer 1

1. Was the search and seizure governed by the 4th Amendment?
2. If the search and seizure was conducted with a warrant, did it satisfy the 4th Amendment?
3. If the search and seizure was conducted without a warrant, did it satisfy the 4th Amendment?
4. If the search and seizure violated the 4th Amendment, is the evidence obtained nonetheless admissible?

Question 2

How do you determine search and seizure issue one - i.e., was the search and seizure governed by the 4th Amendment?

Answer 2

1. Was the search and seizure executed by a government agent?
2. Was there a reasonable expectation of privacy in the area searched or the items seized?

Question 3

Who is a government agent for purposes of executing a search and seizure?

Answer 3

• Publicly paid police on or off duty
• Private citizens if acting at the direction of police

NOT private security guards

Question 4

What are the protected areas for purposes of determining whether a search and seizure violated someone’s reasonable expectation of privacy?

Answer 4

• Persons (i.e., bodies)
• Houses
  
  • Including hotel rooms
  • Including curtilage - i.e., area immediately surrounding house
• Papers (e.g., personal correspondence)
• Effects (e.g., purses and backpacks)

Question 5

What are the unprotected areas for purposes of determining whether a search and seizure violated someone’s reasonable expectation of privacy?

Answer 5

​”Patty Achieved A Glorious Victory Over Her Opponents”

• Paint scrapings on the outside of your car
• Account records held by a bank
• Air space (i.e., anything that can be seen below while flying in public air space)
• Garbage left at the curb for collection
• Voice exemplars
• Odors (i.e., emanating from car or luggage)
• Handwriting
• Open fields (i.e., anything that can be seen in or across an open field)

All of these things share knowing exposure to third parties

Question 6

Does a person have standing to challenge a search if they own the premises searched?

What if they just reside there?

What if they are just overnight guests?

What if they are just using the residence solely for business purposes?

Answer 6

If they own it

• Yes

If they reside there

• Yes

If they are overnight guests

• Yes, as to common areas

If they use it for business

• No

Question 7

Does a person have standing to challenge a seizure if they own the property?

Answer 7

Only if they have a reasonable expectation of privacy in the area from which the property was seized

• E.g., man who hides drugs in girlfriend’s purse does not have reasonable expectation of privacy

Question 8

Does a person have standing to challenge a search if they are a passenger in the car searched?

Answer 8

Only if they have a reasonable expectation of privacy in the item or area searched or seized

• E.g., a passenger does not have standing to challenge seizure of a bag of cocaine with his name on it under the driver’s seat

Question 9

How do you determine search and seizure issue two - i.e., if the search and seizure was conducted with a warrant, did it satisfy the 4th Amendment?

Answer 9

1. Was the warrant supported by both:
   
   • Probable cause
   • Particularity
2. _​_If not, did the government agent rely on a defective warrant in good faith?
3. Was the warrant properly executed by the government agent?

Question 10

How do you determine whether a warrant was supported by probable cause?

What standard applies?

Answer 10

Probable cause requires proof of:

• A fair probability
• That contraband or evidence of crime
• Will be found in the area searched

Standard:

• A neutral and detached magistrate
• Makes this determination
• Based on a totality of the circumstances

Question 11

Can inadmissible evidence be used to establish probable cause?

What about anonymous informant tips?

Answer 11

Yes, both are allowed for purposes of establishing probable cause

As to the informant’s tip, the police must corroborate it

Question 12

In Virginia, are hand-rolled cigarettes enough to establish probable cause?

Answer 12

No

Question 13

In Virginia, is a dog sniff enough to establish probable cause?

Answer 13

Yes.

But if you take a drug dog on a porch, that is a search in itself, so you need to have probable cause beforehand.

Question 14

How do you determine whether a warrant was supported with particularity?

Answer 14

The warrant must specify both:

• The place to be searched
• The item to be seized

Question 15

When is a warrant not supported with particularity?

What should you look out for on the exam?

Answer 15

When it is a general warrant that authorized a fishing expedition

Look out for warrants allowing the search of private areas that could not house the evidence for which there was probable cause to search

• E.g., a warrant to search all closed containers for a knife is too broad because some containers could not hold the knife

Question 16

How do you determine whether a government agent relied on a defective warrant in good faith?

Answer 16

An officer’s good faith reliance on a defective warrant overcomes constitutional deficits unless:

1. Unreasonable reliance on affidavit
   
   • The affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it
2. Facially deficient in particularity
   
   • The warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid
3. Knowing or reckless falsehoods in affidavit
   
   • The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probably cause finding
4. Biased magistrate
   
   • The magistrate who issued the warrant is biased in favor of the prosecution

Question 17

How do you determine whether a warrant was properly executive by the government agent?

Answer 17

1. Did the government agent comply with the warrant’s terms and limitations?
   
   • The agent can search only the areas and items
2. Did the government agent comply with the knock and announce rule?
   
   • Before forcibly entering, the agent must knock and announce both:
     
     • Their presence
     • Their purpose
   • Unless:
     
     • The officer reasonably believes that doing so would either:
       
       • Be futile
       • Be dangerous
       • Inhibit the investigation

Question 18

How do you determine search and seizure issue three - i.e., if the search and seizure was conducted without a warrant, did it satisfy the 4th Amendment?

Answer 18

There are eight exceptions to the warrant requirement:

“ESCAPIST”

1. Exigent circumstances
2. Search incident to arrest
3. Consent
4. Automobile
5. Plain view
6. Inventory
7. Special needs
8. Terry stop and frisk

Question 19

How do you determine whether there are exigent circumstances, and therefore a warrant is not needed?

Answer 19

Evanescent evidence

• Evidence would dissipate or dissapear in the time that it would take to get a warrant
  
  • E.g., scrapings under fingernails, blood evidence in DUI where breathalyzer refused

Hot pursuit

• While looking for a suspect, police may:
  
  • Enter a suspect’s home
  • Enter a third party’s home
  • Seize any evidence of a crime in plain view

Question 20

When can an officer do a search incident to arrest without a warrant?

Answer 20

The arrest must be lawful

The search must be contemporaneous in time and place with the arrest

Rationale

• Officer safety
• Need to preserve evidence

Question 21

What is the proper scope of a search incident to arrest without a warrant?

Answer 21

The search may cover the suspect’s wingspan, which includes:

• The body
• The clothing
• Any containers within the suspect’s immediate control

Note: the offense for which the arrest was made is irrelevant

Question 22

What is the proper scope of a search of an automobile incident to arrest without a warrant?

Answer 22

The search may cover the automobile’s interior cabin

• This includes closed containers
• This excludes the trunk

Question 23

Can an officer search an arrestee’s vehicle after securing the arestee (i.e., by handcuffing and placing him in the squad car)?

Answer 23

Only if the officer has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made

Question 24

What are the requirements for a person to consent to a warrantless search and seizure?

Answer 24

The consent must be both:

• Voluntary
• Intelligent

But officer do not have to tell someone that they have the right to refuse consent

Question 25

Can an officer do a warrantless search based on the consent of someone who lacks actual authority to grant consent?

Answer 25

So long as there was apparent consent - i.e., the officer reasonably believed that the consenting party had actual authority

• Exceptions:
  
  • The following do not have apparent authority:
    
    • Hotel operators
    • Landlords

Question 26

When adults share a residence, who has the authority to consent to a search of the common areas?

What if they disagree about consent, who prevails?

Answer 26

Any or all of them have authority.

If they disagree, the objecting party prevails (but only over areas in which they share dominion and control)

Question 27

When can officers do a warrantless search of an automobile?

Where can they search?

Answer 27

Whenever the officers have probable cause to believe that contraband or evidence of a crime will be found in the car.

If they have probable cause, officers can:

• Search the entire vehicle
• Open any package
• Open any luggage
• Open any other container (so long as it would reasonably contain the item for which there was probable cause to search)

Question 28

When an officer does a warrantless search of a car, when does he have to have probable cause to do so?

Answer 28

Anytime before initiating the search (i.e., it does not have to be at the time the car was pulled over)

Question 29

When can a government agent seize an item in plaint view without a warrant?

Answer 29

Anytime that both:

• The officer has lawful access to both:
  
  • The place
  • The item itself
• The criminality of the item is immediately apparent

Question 30

When do inventory searches arise most often?

Are they constitutional?

Answer 30

Two situations:

• When arrestees are booked into jail
• When vehicles are impounded

Inventory searches are constitutional if both:

• The regulations governing them are reasonable in scope
• The search itself complies with those regulations

Question 31

What is the special needs exception to the warrant requirement?

What are the most common examples?

Answer 31

Law enforcement, government employers, and school officials can do searches and seizures when they have a special need beyond a general interest in law

Examples:

• Random drug testing
• Government employees’ desks and files
• Students’ effects in public schools
• Border searches

Question 32

In what contexts are warrantless random drug tests allowed?

Answer 32

Allowed:

• Railroad employees following an impact accident
• Customs agents who are responsible for drug interdiction
• Public school children who participate in any extracurricular activity

Not allowed:

• Suspicionless drug tests for which the primary purpose is to gather criminal evidence for use by law enforcement

Question 33

When are warrantless searches of government employees’ desks and files permitted?

Answer 33

When the search is to investigate work-related misconduct

Question 34

When are warrantless searches of the effects of public school chlidren permissible?

Answer 34

When the search is to investigate violations of school rules - e.g., smoking on school grounds

Question 35

When are warrantless border searches allowed?

Answer 35

When the search is routine.

Neither citizens nor non-citizens have any 4th Amendment rights at the border.

Question 36

What is a Terry stop?

Answer 36

• A brief
• Detention or seizure
• For the purpose of investigating suspicious conduct

Question 37

When are you seized for 4th Amendment purposes?

Answer 37

When, based on a totality of the circumstances:

• A reasonable person would not feel free to either:
  
  • Leave
  • Decline an officer’s request to answer questions
• Based on:
  
  • Whether an officer brandishes a weapon
  • The officer’s tone and demeanor
  • Whether the person was informed of their right to refuse consent (not necessary, just a factor)

Question 38

When an individual is being pursued by an officer, when is he seized?

Answer 38

Only once he submits to the officer’s authority by either:

• Stopping
• Being physically restrained by the officer

Question 39

Who is seized in a traffic stop?

What if the stop if for a dog sniff?

Answer 39

Both the driver and his passengers are seized, so either can challenge the legality of the stop

Dog sniffs are permissible so long as they do not prolong the stop unreasonably

Question 40

What is a Terry frisk?

Answer 40

• A patdown
• Of the body and outer clothing
• For weapons
• That is justified
• By an officer’s belief
• That a suspect is armed and dangerous

Question 41

What can an officer seize during a Terry frisk?

Answer 41

• Weapons (always)
• Something recognized as contraband
  
  • But without manipulating the object

Question 42

What are Terry frisks involving traffic stops (i.e., car frisks)?

Answer 42

If an officer believes that a suspect is dangerous, he may search the passenger cabin, but limited to the areas in which a weapon may be placed or hidden

Question 43

What evidentiary standarda pplies to Terry stops and frisks?

Answer 43

Reasonable suspicion (which is less than probable cause)

• In Terry stops,
  
  • Must show:
    
    • Specific and articulable facts
    • Suggesting that criminal activity is afoot
• In Terry frisks,
  
  • Must show:
    
    • Specific and articulable facts
    • Suggesting suspect is armed and dangerous

Question 44

Can flight itself establish reasonable suspicion for purposes of a Terry stop or frisk?

Answer 44

No, but it is a very important factor

Question 45

How do you determine search and seizure issue four - i.e., if the search and seizure violated the 4th Amendment, is the evidence obtained nonetheless admissible?

Answer 45

Exclusionary rule

• Evidence obtained in violation of statutory or constitutional provisions is inadmissible in court against the person whose rights were violated

Exceptions to the exclusionary rule

1. Case-in-chief v. cross-examination
   
   • Only inadmissible during prosecution’s case-in-chief
   • May be admitted to impeach on cross
2. Knock and announce violations
   
   • Do not require suppression
3. Officer’s reasonable mistakes
   
   • Do not require suppression if:
     
     • Reasonable based on officer’s knowledge
     • Search ended as soon as realized mistake
   • E.g., searching the wrong apartment
4. Fruit of the poisonous tree

Question 46

How can an officer nullify fruit of the poisonous tree?

Answer 46

By showing a break in the casual link between the original illegality and the criminal evidence later discovered

Three doctrines:

1. Independent source
   
   • Source for discovery is separate and distinct from the original illegality
     
     • E.g., parallel process initiated by other officers
2. Inevitable discovery
   
   • Evidence would necessarily have been discovered through lawful means
     
     • E.g., body would have been found by grid search
3. Attenuation
   
   • Defendant’s free will has been restored through both:
     
     • Passage of time
     • Intervening events

Question 47

What are the requirements for a valid wiretap warrant?

Answer 47

“Screen Telephone Calls Carefully”

1. Suspected persons
   
   • Warrant must name the suspected persons whose conversations are to be overheard
2. Crime
   
   • There must be probable cause that a specific crime have been committed
3. Conversations
   
   • Warrant must describe with particularity the conversations that can be overheard
4. Time
   
   • Wiretap must be for a strictly limited time period

Question 48

What is the rule regarding eavesdropping and the 4th Amendment?

Answer 48

Unreliable ear doctrine

• If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th Amendment claim - i.e., you assume the risk that the other party will not keep your conversation private

Question 49

When does an arrest occur?

Answer 49

Whenever the police:

• Take someone into custody
• Against their will
• For either:
  
  • Prosecution
  • Interrogation

Question 50

What standard of proof applies to arrests?

Answer 50

Probable cause

Question 51

For what offenses does the 4th Amendment permit a custodial arrest?

Answer 51

All offenses

Even those punishable by just a monetary fine

Even those that are non-arrestable under state statute

Question 52

When do you need a warrant to arrest someone?

Answer 52

• Public place
  
  • Felonies
    
    • You do not need a warrant
  • Misdemeanors
    
    • Committed in the officer’s presence
      
      • You do not need a warrant
    • Committed outside the officer’s presence
      
      • You need an arrest warrant
• Third party’s home
  
  • You need both:
    
    • An arrest warrant
    • A search warrant

To arrest someone in a public place, you do not need a warrant

Question 53

In a traffic stop, who can a police officer arrest?

Answer 53

If the officer discovers evidence of crime that suggests a common unlawful enterprise between the driver and his passengers, the officer may arrest any or all of them

Question 54

What are the Virginia codified rules on arrests?

What is the Virginia trend that should be discussed in an essay?

Answer 54

General rule

• An officer may arrest any person who commits any crime (i.e., probably not a traffic violation) if either:
  
  • It was in the officer’s presence
  • It was outside the officer’s presence, but the officer has probable cause to suspect it was a felony

Misdemeanors outside presence

• An officer may arrest someone for an alleged misdemeanor committed outside his presence when:
  
  • The officer receives a telephone or radio message that a warrant for the offense is on file
  • The offense involves assault and battery and the arrest is based on probable cause upon the reasonable complaint of an eyewitness

Growing trend in Virginia

• Growing trend towards exceptions to the rule against warrantless arrests for misdemeanors outside the officer’s presence if they involve violence

Question 55

How should you approach a Virginia essay question on arrests?

Answer 55

1. Discuss the common law rules
2. Discuss the Virginia code
3. Discuss strict application
4. Address allowing possible exceptions

Question 56

What are the Virginia statutory exceptions to the warrant requirement for arrests?

Answer 56

1. Motor vehicle crimes
2. Shoplifting
3. Warrant on file
4. Public drunkenness
5. Assault and battery against a family or household member

Question 57

What challenges can be brought to exclude a confession?

Answer 57

1. 14th Amendment
   
   • Due process clause
2. 6th Amendment
   
   • Right to counsel
3. 5th Amendment
   
   • Miranda doctrine

Question 58

What is the standard for excluding a confession under the 14th Amendment’s due process clause?

Answer 58

Involuntariness

• The confession must be the product of police coercion that overbears the suspect’s will

Question 59

• What is the 6th Amendment right to counsel?
• When does it apply?
• When does it attach?
• What triggers the right?
• What charges does it apply to?

Answer 59

• It is an express constitutional guarantee
• It applies at all critical stages of a criminal prosecution
• It attaches once formal charges are filed (i.e., not upon arrest)
• Initial appearance triggers the right (i.e., but not at the initial appearance, just from that point on)
• It is offense-specific - i.e., it applies only to the charges filed against the person

Question 60

What are the Miranda rights?

What are the warnings?

Answer 60

They are implied rights grounded in the self-incrimination clause of the 5th Amendment

Core warnings:

1. Right to remain silent
2. Anything you say can and will be used against you in a court of law
3. Right to an attorney
4. If you cannot afford one, an attorney will be appointed for you

Question 61

When are Miranda warnings necessary?

Answer 61

Whenever there is a custodial interrogation, which requires:

• Custody
  
  • The atmosphere, viewed objectively, must be characterized by:
    
    • Police domination and cocercion
    • Such that the subject’s freedom of action is limited in a significant way
• Interrogation
  
  • Any conduct the police knew or should have known
  • Was reasonably likely to elicit an incriminating response
    
    • (Not spontaneous confessions because they are not the product of interrogation)

Question 62

When are Miranda warnings unnecessary even if there is custodial interrogation?

Answer 62

If the custodial interrogation is prompted by an immediate concern for public safety

E.g., immediately after a robbery, asking “where’s the gun?”

Question 63

What is required for a Miranda waiver?

Answer 63

1. Knowing and intelligent
   
   • Suspect must understand both:
     
     • The nature of the rights
     • The consequences of abandoning those rights
2. Voluntary
   
   • Waiver must not be the product of police cocercion

Question 64

What is the standard for determining whether Miranda warnings were waived?

Answer 64

Totality of the circumstances

But Miranda warnings and then an answer is likely sufficient

Question 65

Who bears the proof of showing a waiver of Miranda rights?

Answer 65

Proseuction must prove waiver by a preponderance of the evidence

Question 66

If a lawyer calls the police station to say he wants to be present for an interrogation of his client, if the client later waives Miranda rights without the lawyer present, is the waiver valid?

Answer 66

Yes. Suspects are not entitled to a free flow of information to calibrate their self-interest

Question 67

What must officers do after a suspect invokes the right to remain silent?

Answer 67

The officers must scrupulously honor the request

• At the very least, they:
  
  • Cannot badger the suspect into talking
  • Must wait a significant period of time (e.g., 2 hours) before reinitiating questioning,
    
    • But must first obtain a valid Miranda waiver

Question 68

What must officers do after a suspect invokes the right to counsel?

Answer 68

All interrogation must cease unless initiated by the suspect

Question 69

What is must a suspect do to invoke the right to counsel?

Answer 69

Make the request sufficiently clear​ (i.e., not “maybe I should talk to a lawyer”)

Question 70

How long is a request for counsel effective?

Answer 70

The request for counsel expires 14 days after the suspect is released from Miranda custody

After that the suspect may be questioned regarding any matter after receiving a fresh set of Miranda warnings

Note: the 5th Amendment right to counsel is not offense-specific like the 6th Amendment

Question 71

Can the prosecution ever use incriminating statements made in violation of a suspect’s Miranda rights?

Answer 71

Yes. The statements are inadmissible in the prosecution’s case-in-chief, but they may be used to impeach the defendant’s testimony on cross

• But the incriminating statements can only be used to impeach the defendant - not a third party witness

Physical fruits from incriminating statements may also be used, provided that they were voluntary (i.e., no due process violation)

Question 72

If a statement is inadmissible due to a Miranda violation, can subsequent statements after obtaining a Miranda waiver be admitted?

Answer 72

Yes, provided that the initial non-Mirandized statement was not obtained through the use of inherently coercive police tactics

Question 73

What happens if statements made in violation of Miranda were improperly admitted at trial and the defendant is found guilty?

Must the court vacate the gulity verdict?

Answer 73

It depends. The guilty verdict will stand if the government can prove beyond a reasonble doubt that the error was harmless because the defendant would have been convicted without the tainted evidence

Question 74

What are the different types of pre-trial identification?

Answer 74

1. Line-ups
   
   • Witness asked to identify perpetrator from a group
2. Show-ups
   
   • One-on-one confrontation between witness and suspect
3. Photo arrays
   
   • Witness askd to pick out the perpetrator from a series of photos

Question 75

What are the substantive challenges to pre-trial identifications?

Answer 75

1. Right to counsel
   
   • 5th Amendment
     
     • Not available for pre-trial identifications
   • 6th Amendment
     
     • Available for:
       
       • Line-ups
       • Show-ups
     • Not available for:
       
       • Photo arrays
2. Due process
   
   • Violates 14th Amendment when so unnecessarily suggestive that there is a substantial likelihood of misidentification

Question 76

What is the remedy for constitutional vioaltions in pre-trial identifications?

Answer 76

Exclusion of the witness’s in-court identification, unless:

• Prosecution can prove it is based on observations of the suspect other than the unconstitutional show-up or photo array, such as:
  
  • Witness’s opportunity to view the defendant at the crime scene
  • The certainty of the witness’s identification
  • The specificity of the description given to the police

Question 77

• What do grand juries do?
• Are their proceedings public?
• Do states have to use them as part of the charing process?

Answer 77

• They issue indictments
• They are secret
• States do not have to use them, but many do

Question 78

What are the different types of grand juries in Virginia?

How many jurors do they have?

What do they do?

Answer 78

• Regular/charging grand juries
  
  • 5 - 9 jurors
  • Consider bills of indictment prepared by the Commonwealth’s attorney
  • Determine whether there was sufficient probable cause to return a true bill
• Special/investigative grand juries
  
  • 9 - 11 jurors
  • Investigates and makes a report
  • That is filed with the court
• Multi-jurisdictional grand juries
  
  • Acts across jurisdictional lines within Virginia to investigate and return indictments

Question 79

What is the standard of proof for pre-trial detention?

Answer 79

The government needs probable cause both to:

• Bind a defendant over for trial
• Detain a defendant in jail before trial

Question 80

What is a detention hearing?

When is it necessary?

Answer 80

Also known as a Gerstein hearing

Used to determine probable cause

Unnecessary to justify pretrial detention if:

• Grand jury has issued an indictment
• Magistrate has issued an arrest warrant

(Already probable cause in those situations)

Question 81

What is the “first appearance”?

Answer 81

Soon after arrest, a defendant must be brought before a magistrate who will:

1. Advise the defendant of his rights
2. Set bail
3. Appoint counsel (if necessary)

Question 82

When can you appeal a bail decision?

Answer 82

Immediately

Question 83

Is there a right to bail in Virginia?

Answer 83

The accused has a right to bail unless there is:

• Probable cause
• To believe the accused either:
  
  • Will not appear for trial
  • Poses an unreasonable danger to himself or the public

(i.e., flight or fight)

Question 84

In Virignia, is there ever a situation where there is no right to bail?

Answer 84

Yes, if the person is accused of a violent crime

Question 85

What is one of a prosecutor’s main obligations in a case?

Answer 85

Disclose all material exculpatory evidence to a criminal defendant

Question 86

What does the right to an unbiased judge mean?

Answer 86

• Judge has no financial stake in the outcome of the case
• Judge has no actual malice towards the defendant

Question 87

When do criminal defendants have a right to a jury?

Answer 87

When the maximum authorized sentence exceeds 6 months

The judge cannot sentence a defendant to more than 6 months if he had a right to a jury trial and did not receive one

Question 88

Under common law, what is the fewest number of jurors required in a criminal trial?

Answer 88

6 jurors

Question 89

In Virginia, what is the fewest number of jurors required for a felony trial?

What about a misdemeanor trial?

Answer 89

Felony - 12 jurors

Misdemeanor - 7 jurors

Question 90

Under common law, when must jury verdicts in criminal trials be unanimous?

Answer 90

Only if 6 jurors are used

Question 91

What are the Virginia distinctions regarding juries?

Answer 91

• Juries generally sentence
• Criminal verdicts have to be:
  
  • Unanimous
  • In writing
  • Returned by a jury in open court

Question 92

What are peremptory challenges?

Answer 92

They permit both sides to exclude jurors without stating a reason, so long as it is not based on race or gender

Question 93

In Virginia, how many good cause challenges does a lawyer get?

What about peremptory?

Answer 93

Good cause

• Unlimited

Peremptory

• Felony
  
  • 4
• Misdemeanor
  
  • 3

Question 94

In Virginia, what happens if a defendant does not get unlimited good cause challenges to the jury?

Answer 94

This is reversible error, even if the juror ended up being excluded under a peremptory challenge

Question 95

Is there any situation in which the 6th Amendment’s Confrontation Clause would not apply?

Answer 95

When face-to-face confrontation would contravene important public policy conerns

E.g., traumatizing a child witness

Question 96

What is the test for claims of ineffective assistance of counsel?

Answer 96

1. Counsel’s performance was deficient
2. But for the deficiency, the outcome of the trial would have been different (i.e., prejudice requirement)

E.g., no deficiency when attorney took cat naps during trial

E.g., no prejudice when attorney took 15 minute nap during direct testimony because witness testified to non-contested matters

Question 97

What is the exam tip for ineffective assitance of counsel claims?

Answer 97

Unless there is some colorable argument that the defendant is actually not guilty, relief should be denied under such claim

Question 98

What does the judge have to do to make a guilty plea valid?

Answer 98

1. Establish that the plea is
   
   • Voluntary
   • Intelligent
2. Address, in open court, on the record:
   
   • Nature of the charges
   • Consequences of the plea

Question 99

Can a defendant withdraw a guilty plea after sentencing?

Answer 99

Only if either:

• The plea was involuntary due to a defect in the plea-taking colloquy
• There was a jurisdictional defect (i.e., wrong court took the plea)
• Defendant prevails on IAC claim
• Prosecutor fails to fulfill part of the bargain

Question 100

What are the types of pleas other than a guilty plea?

Answer 100

• Nolo contendere plea
  
  • Court may consider defendant guilty for purposes of imposing judgment and sentencing, but it is neither a confession nor a declaration of innocence
• Conditional guilty plea
  
  • Defendant contests one issue of the case, but agrees to plead guilty if he can appeal that issue
• Alford plea
  
  • Defendant concedes only that the prosecution has sufficient evidence to prove the case

Question 101

Under common law, what is the effect of a nolo contendere plea on later civil cases?

What about in Virginia?

Answer 101

Common law

• Defendant is not estopped in a civil case from denying liability

Virginia

• Admissible in civil litigation against defendant

Question 102

When is a conditional guilty plea available in Virginia?

Answer 102

Only in felony cases

Question 103

What are the Virginia rules on withdrawal of pleas?

Answer 103

Defendant may withdraw:

• Guilty plea
• Nolo contendere plea

But only either:

• Before sentence is imposed
• Imposition of sentence is suspended
• Within 21 days after entry of a final order if the court sets aside the judgment in order to correct a manifest unjustice

Question 104

What does that 8th Amendment do?

Answer 104

Prohibits cruel and unusual punishment, including criminal penalties that are grossly disproportionate to the seriousness of the offense

Question 105

Can a death penalty statute violate the 8th Amendment?

Answer 105

Yes, if it creates an automatic category for imposition of the death penalty

Question 106

Against what categories of defendants does the 8th Amendment prohibit the death penalty?

Answer 106

• Mentally retarded defendants
• Presently insane defendants
• Defendants who were under 18 at the time of the offense

Question 107

For purposes of double jeopardy, when does jeopardy attach?

Answer 107

Jury trial

• When the jury is sworn

Bench trial

• When the first witness is sworn

Guilty plea

• When the court accepts the defendant’s plea unconditionally

Question 108

Does the double jeopardy clause apply to civil proceedings?

Answer 108

No

Question 109

What are the requirements for double jeopardy?

Answer 109

1. It must attach
2. It must involve the same offense
3. It must involve the same sovereign

Question 110

For purposes of double jeopardy, when are two offenses not the same?

Answer 110

When each contains an element that the other does not contain

Lesser-included offenses

• If any one offense is completely subsumed by another, such as a lesser included offense, the two offenses are deemed the same, and punishment is allowed only for one (i.e., only one offense contains an element that is separate from the other)

Question 111

For purposes of double jeopardy, what is the same sovereign?

Answer 111

States and municipalities within them

But not:

• State and federal government
• Different states

Question 112

What are the exceptions to the double jeopardy rule?

Answer 112

1. Hung jury
2. Mistrial for manifest necessity
3. Successful appeal, unless
   
   • Reversal on appeal was based on insufficiency of evidence presented by prosecution
4. Breach of plea agreement by defendant

Question 113

In Virginia, what is the rule for double jeopardy?

Answer 113

Conspiracy

• Prosecution for the substantive offense bars later prosecution for the related conspiracy

Federal prosecution

• Prosecution for a federal crime bars later state prosecution under the equitablent state statute
  
  • Note - federal trial must come first

Question 114

Who can assert the fifth amendment?

Answer 114

Anyone

Question 115

When can the fifth amendment privilege be asserted?

Answer 115

In any proceeding in which an individual testifies under oath

Question 116

When must the fifth amendment privilege be asserted?

Answer 116

At the first opportunity

Otherwise, it is forever waived

Question 117

How do you eliminate the fifth amendment privilege?

Answer 117

1. Prosecutorial grant of use and derivative use immunity
   
   • Prosecution cannot use your testimony or anything derived from it to convict you
2. Defendant taking the stand
   
   • Defendant waives the privilege as to anything properly within the scope of cross-examination
3. Statute of limitations
   
   • If the statute of limitations has run on the underlying crime, the privilege is not available since he could not be exposed to criminal prosecution

Question 118

How do you determine whether an individual’s right to a speedy trial has been violated?

Answer 118

Totality of the circumstances, based on:

• Length of delay
• Reason for delay
• Whether defendant asserted the right
• Prejudice to defendant

Question 119

What is the remedy for violation of the right to a speedy trial?

Answer 119

Dismissal with prejudice

Question 120

When does the right to a speedy trial attach?

Answer 120

When the defendant is either:

• Arrested
• Formally charged

Question 121

What are the Virginia distinctions for the right to a speedy trial?

Answer 121

Accused is permanently discharged from prosecution if he committed a felony and trial does not begin within:

• Defendant in custody - 5 months
• Defendant not in custody - 9 months

Question 122

For speedy trial purposes, when is a trial commenced?

Answer 122

Either

• When double jeopardy attaches
• A guilty plea or nolo contendere plea is tendered

Question 123

What events can toll the right to a speedy trial?

Answer 123

• Insanity
• Escape
• Witness issues
• Separate trials
• Hung jury
• Natural disaster
• Continuance on motion by accused
• Appeals

Question 124

How do you waive your right to a speedy trial?

Answer 124

Either by:

• Failing to invoke it after final judgment
• Failing to oppose a motion for a continuance

Question 125

What are solutions fo publicity issues in a trial?

Answer 125

• Delay trial
• Sequester jury
• Change venue
• Close the trial
  
  • Only allowed if both:
    
    • Compelling interest
    • No less restrictive alternative

Question 126

In Virginia, for district courts:

• Are there juries?
• Is there a record?
• What jurisdiction does the court have?

Answer 126

• No juries
• No record
• Jurisdiction over:
  
  • Misdemeanors
  • Preliminary hearings for felonies

Question 127

In Virginia, for circuit courts:

• Are there juries?
• Is there a record?
• What jurisdiction does the court have?

Answer 127

• Jury - yes (but bench too)
• Record - yes
• Jurisdiction over felonies and appeals from district court (de novo)

Question 128

In Virginia, for courts of appeal:

• Is there appeal of right?
• What jurisdiction do they have?

Answer 128

• No appeal of right
• Jurisdiction of final appeals for misdemeanor convictions if no jail

Question 129

What does the Virginia supreme court hear?

Answer 129

• Substantial constitutional issues
• Issues of significant precedential value
• Death penalty cases (automatically)

Question 130

In Virginia, what is the statute of limitations for:

• Felony
• Misdemeanor
• Continuing offense (e.g., desertion or nonsupport)

Answer 130

Felony - none

Misdemeanor - 1 year

Continuing offense - none

Question 131

In Virginia, where are preliminary hearings heard?

Who has a right to one?

Answer 131

District court

Accused charged with a felony unless an indictment is returned beforehand

Question 132

In a preliminary hearing in Virginia, what are the options for the judge?

Answer 132

• No probable cause - discharge defendant
• Probable cause
  
  • Misdemeanor
    
    • Charge defendant and proceed to trial
  • Felony
    
    • Charge defendant, but because district court does not have jurisdiction,
      
      • Certify to circuit court
      • Commit accused to jail or set bail

Question 133

In Virginia, what are the different forms of indictment?

Answer 133

1. Indictment
   
   • Prepared by the Commonwealth’s attorney
   • Returned a true bill by grand jury
2. Presentment
   
   • Written accusation of a crime
   • Prepared and returned by a grand jury
3. Information
   
   • Written accusation of a crime, or
   • Complaint for forfeiture of money or property
   • Prepared and presented by a public official upon his oath in office

Question 134

When is an indictment or presentment required?

Answer 134

If the defendant is charged with a felony and has not waived this right

Question 135

What is habeas corpus?

What are the grounds for it?

Answer 135

Civil trial in which defendant sues the government for:

• Holding him on an unconstituational basis
• Holding him in an unconstitutional manner

Question 136

Where must a habeas corpus case be filed?

Answer 136

Where the defendant was originally sentences, unless it is a death penalty case, which goes to the supreme court

Question 137

What are the non-waivable rights in Virginia?

Answer 137

• Appearance
• Failure to state an offense

Question 138

What rights are waivable by affirmative action?

Answer 138

• Right to counsel
• Miranda rights
• Right to jury trial