Criminal Procedure Past Essay Rules Flashcards
May a Defendant waive his right to a jury trial upon the advice of counsel?
Yes, so long as:
1. The commonwealth attorney and judge agree,
2. The court determines before trial that the waiver was voluntarily and intelligently given,
and
3. The waiver of all parties is on the record.
What is the purpose of Jury Trial Bifurcation?
A jury trial is bifurcated to allow for both a guilt and a sentencing phase, under bifurcation:
- The jury can decide the punishment
and - the Judge (with the consent of the defendant and CW) can determine the sentence.
How is a Motion to Strike CW’s evidence considered?
All inferences that a jury might fairly drawn from the CW’s evidence must be drawn in its favor UNLESS those inferences would be strained, forced, or contrary to reason
When should a Defendant’s Motion to Strike be granted?
If the evidence, despite all inferences drawn in the CW’s favor, is insufficient as a matter of law to sustain the conviction
What is the Exclusionary Rule?
Under the Exclusionary Rule, evidence obtained in violation of the Fourth Amendment may not be introduced at trial to prove guilt
What does the Fourth Amendment of the United States Constitution protect against?
Against unreasonable searches and seizures by government actors
When does a “search” occur?
When government conduct violates a reasonable expectation of privacy.
What is the Rule on Warrants?
Generally, a warrant is required to search a home, UNLESS:
1. Voluntary consent is given
2. From someone who is an occupant (does not have to be the defendant).
What is the Plain View Exception to the Warrant Requirement?
The Plain View Exception permits the seizure of an item found in “plain view” even though it was not named in the search warrant.
When does the Plain View Exception apply?
The Plain View Exception applies when:
1. the government actor is lawfully on the premises,
2. the incriminating character of the item is immediately apparent, and
3. the actor had **lawful access **to the item.
Can a Criminal Defendant appeal a circuit court verdict or decision to the VA Court of Appeals?
Yes, a criminal defendant can appeal a final verdict or decision from the circuit court to the VA Court of Appeals as of right.
How long does a defendant have to file a Notice of Appeal?
In Virginia, a defendant must file a Notice of Appeal within 30 days from the date of the Final Order being appealed.
When can charges be severed?
Two or more offenses may be charged in separate counts of the same indictment so long as the charges are based on:
1. the same act, transaction
OR
2. two or more acts or transactions that are connected or part of a commonw scheme or plan
When must severed charges be tried?
The defendant must be tried for all offenses pending against him at the same trial - UNLESS the judge requires otherwise
What is the Miranda Rule?
Under the Fifth Amendment, an incriminating statement obtained a a result of custodial interrogation may not be used against the suspect at a subsequent trial UNLESS the police provided procedural safegaurds effective to secure the privilege against self-incrimination (i.e., giving the suspect his Miranda Rights).
A Miranda violation **does/does not **automatically require the suppression of incriminating statements made by the defendant after receiving Miranda warnings.
does
What is the standard is used to review the voluntariness of a confession after Miranda has been given?
A review of the voluntariness is based on the totality of the circumstances, including:
1. time
2. length
3. place
4. presence of others, and
5. factors related to the defendant (age, state of health, education, and intoxication)
What is the Sixth Amendment’s Right to Confrontation?
Under the Sixth Amendment, a defendant has the right to:
(1) directly encounter and cross-examine (i.e., confront) adverse witnesses, and
(2) be present at any state of the trial that would enable the defendant to effectively cross-examine adverse witness.
