Trial & its Incidents

Question 1

Virginia’s speedy trial statute provides that an accused is forever discharged from prosecution if:

Answer 1

1. The accused is in custody and no trial is commenced within 5 months of the preliminary hearing, or
2. The accused is not in custody and no trial is commenced within 9 months of the preliminary hearing.

Question 2

If there is no preliminary hearing or if it was waived, the periods commence at…

Answer 2

at the time an indictment or presentment is found.

Question 3

If there was no indictment or presentment prior to arrest, and no preliminary hearing, the periods commence from the date of…

Answer 3

arrest.

Question 4

If there was a preliminary hearing, the period commences once…

Answer 4

probable cause is found by the general district court judge.

Question 5

One must invoke their right to a speedy trial before…

Answer 5

trial, otherwise it is a waiver.

Question 6

The periods of a speedy trial are tolled if failure to try the accused is caused by:

Answer 6

1. Defendant’s insanity
2. Defendant’s escape from jail or failure to appear;
3. Illness or forced absence of a Commonwealth witness;
4. Granting of separate trials to joint felons;
5. Hung jury;
6. Natural disaster or intervening act of God;
7. Granting a continuance upon a motion of the accused or by his concurrence in such motion by the Commonwealth.

Question 7

In a court of record, an accused has an absolute right to…

Answer 7

a jury.

Question 8

In cases of misdemeanors in a court not of record, there is no right to a jury, but instead…

Answer 8

a right to “appeal” the conviction to a court of record and receive a trial “de novo” before a jury.

Question 9

Jurors must be:

Answer 9

1. Citizens over 18;
2. Residents of the state for 1 year;
3. Residents of the county, city, or town for 6 months.
4. Competent;
5. Representing a cross-section of the community.
6. Only a juror for 1 term during the year, unless and until all other names have been drawn.

Question 10

For felony matters, how many persons free from exception are selected for venire?

Answer 10

20

Question 11

For felony matters, how many peremptory challenges to jurors are allowed?

Answer 11

4 by each side.

Question 12

How many jurors make up a final jury for a felony matter?

Answer 12

12

Question 13

For misdemeanor matters, how many persons free from exception are selected for venire?

Answer 13

13

Question 14

For misdemeanor matters, how many peremptory challenges to jurors are allowed?

Answer 14

3 by each side.

Question 15

How many jurors make up a final jury for a misdemeanor matter?

Answer 15

7

Question 16

Under Virginia law, failure of the court to exclude a venireman who should be excluded for cause is a…

Answer 16

reversible error, even when the venireman is excluded by the defendant’s use of a peremptory challenge.

Question 17

A juror may be challenged for cause for:

Answer 17

1. Being related to either party;
2. Having an interest in the cause; or
3. Having a bias or prejudice related to the action.

Question 18

A court may discharge a jury that cannot reach a verdict or if there is a…

Answer 18

manifest necessity for such discharge.

Question 19

A trial must take place in the…

Answer 19

city or county in which the crime was committed.

Question 20

If it cannot be readily determined in which county or city within Virginia an offense occurred, the trial can take place in the county or city:

Answer 20

1. In which the D resides;
2. If the D is not a resident of the Commonwealth, in which the D was apprehended; or
3. If the D is not a resident of the Commonwealth and is not apprehended in the Commonwealth, in which any related offense was committed.

Question 21

In special situations, where a venue can not be ascertained by any applicable rule, look to…

Answer 21

the place that has the logical nexus with the crime and the defendant.

Question 22

Who has the burden to prove venue?

Answer 22

The state.

Question 23

For a motion for safe and impartial trial, the burden is on the…

Answer 23

accused.

Question 24

In Virginia, the accused motioning for a safe and impartial trial must show:

Answer 24

1. Mob action;
2. Inflammatory press or media coverage; or
3. Unusual difficulty in securing an impartial jury.

Question 25

Upon showing that the defendant’s sanity is likely to be a significant factor in his defense, the court must…

Answer 25

appoint a psychciatrist to examine a

Question 26

A defendant has a waivable right to be present during…

Answer 26

the trial in a felony situation.

Question 27

A defendant may be tried in absentia if they…

Answer 27

knowingly and voluntarily absconded from the jurisdiction after commencement of trial.

Question 28

The courts may order persons charged with participating in contemporaneous and related acts or occurrences constituting an offense to be tried jointly unless…

Answer 28

a joint trial would constitute actual prejudice to the D.

Question 29

If prejudice will result from joint trial, the court is to order…

Answer 29

severance.

Question 30

If several offenses committed by the same accused, the accused has no right to be tried…

Answer 30

for only one offense at a time of all of the offenses are related.

Question 31

Arraignment is when…

Answer 31

the accused is brought forth to the court where they are to be tried and asked to plead.

Question 32

Before pleading to the merits, the accused may make a motion to…

Answer 32

dismiss, or a motion to grant appropriate releif.

Question 33

A plea of nolo contendere is…

Answer 33

neither a confession nor a declaration of guilt or innocence.

Question 34

What is the implication of a plea of nolo contendere?

Answer 34

The defendant will agree that the court may consider the defendant guilty for the purpose of imposing a judgment and a sentence.

Question 35

A plea of nolo contendere also serves as a…

Answer 35

waiver of all defenses, except those based on jurisdiction.

Question 36

A motion to withdraw a guilty plea can only be made before…

Answer 36

sentence is imposed or imposition of sentence is suspended.

Question 37

The court, in its discretion, may permit a defendant to withdraw their guilty plea within…

Answer 37

21 days after final judgment.

Question 38

A guilty plea is a waiver of all defenses on appeal except regarding…

Answer 38

1. Voluntariness;
2. Lack of jurisdiction;
3. Ineffective assistance to counsel; and
4. Breach of a plea bargain.

Question 39

A plea of not guilty denies…

Answer 39

every essential allegation in the charge.

Question 40

Counsel may not comment before the jury on the accused failure to testify unless…

Answer 40

such comment is a response to defense counsel’s assertion that the D was not given a chance to tell their side of the story.

Question 41

Under Virginia law, a defendant may be retried if:

Answer 41

1. There is a hung jury;
2. A mistrial is declared for manifest necessity;
3. A defendant is acquitted due to a variance between the allegations and the proof; or
4. The prosecution is for conspiracy after some of the alleged overt acts of that conspiracy have already been prosecuted.

Question 42

Under Virginia law, prosecution under a federal statute bars…

Answer 42

later prosecution for the same act under a state statute.

Question 43

The double jeopardy defense is waived if not raised before…

Answer 43

the second trial.

Question 44

A defendant’s spouse may not be compelled to testify against the defendant in a criminal case, except:

Answer 44

1. In a prosecution for an offense committed by one against the other or against a minor child of either;
2. In a case in which either is charged with forgery of the other’s signature; or
3. In any proceeding relating to violation of the laws pertaining to criminal sexual assault.

Question 45

The court decides punishment unless the defendant requested that…

Answer 45

the jury decide punishment.

Question 46

Sentences to confinement for 2 or more offenses do not run….

Answer 46

concurrently, unless expressly ordered by the court.