Pre Trial Procedures

Question 1

What is a felony indictment

Answer 1

A indictment is a formal charge prepared by the CA and approved by the vote of a grand jury as a “true bill”

Question 2

Statutory right to indictment

Answer 2

In Virginia, no person may be tried for a felony charge unless an indictment is returned by a grand jury, unless the D waives the right to indictment in open court

Question 3

A Person arrested on a Felony Charge has a

Answer 3

Statutory right to a preliminary hearing before the GDC

Question 4

A preliminary hearing does what ?

Answer 4

Determines probable cause

Question 5

If probable cause is found at a preliminary hearing what happens ?

Answer 5

If the GDC finds probable cause, the case is Certified to the CC, the case is then presented to a grand jury which considers the indictment and returns a true bill if it finds probable cuase

Question 6

If probable cause is not found at a preliminary hearing, what happens ?

Answer 6

The case is dismissed

Question 7

What is a Direct Indictment ?

Answer 7

The Commonwealth’s attorney brings the case directly to a grand jury and obtains an indictment before arresting the D

Question 8

A defendant arrested after a Direct Indictment does not have

Answer 8

A statutory right to a preliminary heading

Question 9

Preliminary Hearings and Grand Jury proceedings do not

Answer 9

constitute jeopardy for purposes of the double jeopardy clause

Question 10

A trial in GDC is

Answer 10

jeopardy

Question 11

A trial on a lesser included misdemeanor can

Answer 11

bar subsequent prosecution of a felony for the same offense

Question 12

A Nolo Contendre Plea

Answer 12

is not an admission of guilt, but an an agreement not to contest the case. It allows the court to enter a judgment of guilt to be rendered against the D.

Question 13

An Alford Plea

Answer 13

Is a guilty plea entered when the D asserts his factual innocence and does not admit to the facts

Question 14

What are the advantages of Alford/nolo contendre pleas ?

Answer 14

They impact civil liability and avoid the problem of judicial estoppel

Question 15

What is Judical Estoppel ?

Answer 15

It prevents a party from maintaining inconsistent factual positions in successive judicial proceedings

Question 16

In Va, Alford and nolo contendre pleas are

Answer 16

admissible in civil proceedings

Question 17

D kills Person in DUI. Pleads no contendre. P sues D for wrongful Death and files MSJ saying D has admitted to guilt. What result ?

Answer 17

Court will deny the MSJ. The D did not admit to the underlying facts

Question 18

How must guilty pleas be entered ?

Answer 18

In open court (except for some traffic offenses)

Question 19

For a guilty plea the court must make findings that

Answer 19

1) The plea is voluntary; and
2) The plea is knowing

Question 20

If a court does not make findings that a plea is voluntary and knowing

Answer 20

Then the plea could be withdrawn or nullified

Question 21

Before a case goes to sentencing, A D can withdraw a guilty plea by

Answer 21

showing that his motion to withdraw is made in good faith and he proffers evidence of a reasonable basis for contesting guilt

Question 22

Within 21 days after sentencing, A d can only withdraw from a guilty plea

Answer 22

if “necessary to cure manifest injustice”

Question 23

Plea Agreements must be

Answer 23

1) Reduced to writing
2) presented in open court as matter of public record (unless sealed by the court)

Question 24

What are the two categories of plea agreements ?

Answer 24

1) Recommendations
2) Binding Agreements

Question 25

what is a recommended plea agreement

Answer 25

Prosecutor is bound to make a recommendation for a particular sentence. Court may depart for recommendation

Question 26

If Court departs from a recommended plea agreement, can the D withdraw the plea deal ?

Answer 26

NO, he can only withdraw if the Commonwealth breaches the agreement

Question 27

What is a binding agreement

Answer 27

When parties agree that there will be a specific sentence and/or that a particular charge will be dismissed

Question 28

If a court departs from a binding agreement, can the d withdraw his guilty plea ?

Answer 28

Yes, and proceed to trial

Question 29

What is an arraignment

Answer 29

A proceeding in open court where a D is called upon to enter a plea to the charge