Trial & its Incidents Flashcards
Virginia’s speedy trial statute provides that an accused is forever discharged from prosecution if:
- The accused is in custody and no trial is commenced within 5 months of the preliminary hearing, or
- The accused is not in custody and no trial is commenced within 9 months of the preliminary hearing.
If there is no preliminary hearing or if it was waived, the periods commence at…
at the time an indictment or presentment is found.
If there was no indictment or presentment prior to arrest, and no preliminary hearing, the periods commence from the date of…
arrest.
If there was a preliminary hearing, the period commences once…
probable cause is found by the general district court judge.
One must invoke their right to a speedy trial before…
trial, otherwise it is a waiver.
The periods of a speedy trial are tolled if failure to try the accused is caused by:
- Defendant’s insanity
- Defendant’s escape from jail or failure to appear;
- Illness or forced absence of a Commonwealth witness;
- Granting of separate trials to joint felons;
- Hung jury;
- Natural disaster or intervening act of God;
- Granting a continuance upon a motion of the accused or by his concurrence in such motion by the Commonwealth.
In a court of record, an accused has an absolute right to…
a jury.
In cases of misdemeanors in a court not of record, there is no right to a jury, but instead…
a right to “appeal” the conviction to a court of record and receive a trial “de novo” before a jury.
Jurors must be:
- Citizens over 18;
- Residents of the state for 1 year;
- Residents of the county, city, or town for 6 months.
- Competent;
- Representing a cross-section of the community.
- Only a juror for 1 term during the year, unless and until all other names have been drawn.
For felony matters, how many persons free from exception are selected for venire?
20
For felony matters, how many peremptory challenges to jurors are allowed?
4 by each side.
How many jurors make up a final jury for a felony matter?
12
For misdemeanor matters, how many persons free from exception are selected for venire?
13
For misdemeanor matters, how many peremptory challenges to jurors are allowed?
3 by each side.
How many jurors make up a final jury for a misdemeanor matter?
7
Under Virginia law, failure of the court to exclude a venireman who should be excluded for cause is a…
reversible error, even when the venireman is excluded by the defendant’s use of a peremptory challenge.
A juror may be challenged for cause for:
- Being related to either party;
- Having an interest in the cause; or
- Having a bias or prejudice related to the action.
A court may discharge a jury that cannot reach a verdict or if there is a…
manifest necessity for such discharge.
A trial must take place in the…
city or county in which the crime was committed.
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:
- In which the D resides;
- If the D is not a resident of the Commonwealth, in which the D was apprehended; or
- If the D is not a resident of the Commonwealth and is not apprehended in the Commonwealth, in which any related offense was committed.
In special situations, where a venue can not be ascertained by any applicable rule, look to…
the place that has the logical nexus with the crime and the defendant.
Who has the burden to prove venue?
The state.
For a motion for safe and impartial trial, the burden is on the…
accused.
In Virginia, the accused motioning for a safe and impartial trial must show:
- Mob action;
- Inflammatory press or media coverage; or
- Unusual difficulty in securing an impartial jury.
Upon showing that the defendant’s sanity is likely to be a significant factor in his defense, the court must…
appoint a psychciatrist to examine a
A defendant has a waivable right to be present during…
the trial in a felony situation.
A defendant may be tried in absentia if they…
knowingly and voluntarily absconded from the jurisdiction after commencement of trial.
The courts may order persons charged with participating in contemporaneous and related acts or occurrences constituting an offense to be tried jointly unless…
a joint trial would constitute actual prejudice to the D.
If prejudice will result from joint trial, the court is to order…
severance.
If several offenses committed by the same accused, the accused has no right to be tried…
for only one offense at a time of all of the offenses are related.
Arraignment is when…
the accused is brought forth to the court where they are to be tried and asked to plead.
Before pleading to the merits, the accused may make a motion to…
dismiss, or a motion to grant appropriate releif.
A plea of nolo contendere is…
neither a confession nor a declaration of guilt or innocence.
What is the implication of a plea of nolo contendere?
The defendant will agree that the court may consider the defendant guilty for the purpose of imposing a judgment and a sentence.
A plea of nolo contendere also serves as a…
waiver of all defenses, except those based on jurisdiction.
A motion to withdraw a guilty plea can only be made before…
sentence is imposed or imposition of sentence is suspended.
The court, in its discretion, may permit a defendant to withdraw their guilty plea within…
21 days after final judgment.
A guilty plea is a waiver of all defenses on appeal except regarding…
- Voluntariness;
- Lack of jurisdiction;
- Ineffective assistance to counsel; and
- Breach of a plea bargain.
A plea of not guilty denies…
every essential allegation in the charge.
Counsel may not comment before the jury on the accused failure to testify unless…
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.
Under Virginia law, a defendant may be retried if:
- There is a hung jury;
- A mistrial is declared for manifest necessity;
- A defendant is acquitted due to a variance between the allegations and the proof; or
- The prosecution is for conspiracy after some of the alleged overt acts of that conspiracy have already been prosecuted.
Under Virginia law, prosecution under a federal statute bars…
later prosecution for the same act under a state statute.
The double jeopardy defense is waived if not raised before…
the second trial.
A defendant’s spouse may not be compelled to testify against the defendant in a criminal case, except:
- In a prosecution for an offense committed by one against the other or against a minor child of either;
- In a case in which either is charged with forgery of the other’s signature; or
- In any proceeding relating to violation of the laws pertaining to criminal sexual assault.
The court decides punishment unless the defendant requested that…
the jury decide punishment.
Sentences to confinement for 2 or more offenses do not run….
concurrently, unless expressly ordered by the court.
