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VA Essay Topics > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

1
Q

What is an Alford plea?

A

defendant is unwilling to admit guilt, but there is factual evidence of guilt
avoid a harsher penalty

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2
Q

When must a motion to exclude evidence based on probable cause to arrest without a warrant or search be raised?

A

7 days prior to trial

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3
Q

How must notice must the defense provide of intent to use insanity defense?

A

60 days before trial

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4
Q

In a felony criminal case, an arraignment is not necessary when?

A

Waiver by accused

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5
Q

In a misdemeanor criminal case, an arraignment is not necessary when?

A

Waived by accused or counsel

Upon failure of accused to appear

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6
Q

How long does a defendant have to withdrawal guilty plea?

A

21 days after entry of final order

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7
Q

Does a guilty plea waive the claim of ineffective assistance of counsel in a criminal case?

A

No.

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8
Q

Circumstances that defendant may be convicted of capital murder in VA?

A

1) abduction with intent to extort money; 2) for hire; 3) by an inmate; 4) during an armed robbery; 5) during rape; 6) killing of police or judge; 7) witness under subpoena; 8) killing of multiple people in same act; 9) killing of multiple people within 3 years; 10) pregnant women; 11) children under 14; 12) during act of terrorism

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9
Q

What insanity defense does VA follow?

A

M’Naghten Rule (unable to distinguish right from wrong) and

Irresistible impulse test (unable to control or conform conduct)

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10
Q

What is the standard of proof necessary to overcome the presumption in a criminal case that subsequent confessions are tainted following an involuntary confession?

A

Clear and convincing evidence

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11
Q

In a criminal case, what must a jury verdict include?

A

unanimous
in writing
signed by foreman (not all jurors)
returned by jury in open court

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12
Q

Is voluntary intoxication a defense to specific intent crimes in VA?

A

No

Could be a defense on multi-state

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13
Q

Criminal procedure in VA is governed by what?

A

1) VA constitution
2) VA code of criminal procedure
3) rules of Supreme Court

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14
Q

In a criminal proceeding, an indictment must contain?

A

1) name of accused
2) description of offense - citing statute
3) where act was committed - city/county
4) when the act was committed - date

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15
Q

A conviction based on an involuntary confession that was erroneously admitted is reviewed under what standard on appeal?

A

Harmless error - show that there was overwhelming evidence of guilt

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16
Q

How long can a shopkeeping detain a suspected shoplifter before police arrive?

A

one hour

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17
Q

When someone is convicted or perjury they are prohibited from doing what?

A

1) holding office under VA constitution

2) serving as a juror

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18
Q

What is the standard of proof for revoking bail upon a finding that accused will not appear or is a danger?

A

probable cause

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19
Q

In VA a defendant may be convicted of petit larceny if the value of the item is less than ____.

A

$200

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20
Q

When the jury returns a verdict of guilt, how long does the court have to set aside of the verdict for error committed during trial?

A

21 days on motion of accused.

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21
Q

Is there a right to appeal for criminal cases?

A

No appeal right for criminal convictions

Goes to the Virginia Court of Appeals

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22
Q

If a criminal conviction is appealed, which court is the case taken to in VA?

A

Virginia Court of Appeals.

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23
Q

Who owns the martial privilege in criminal cases in VA?

A

testifying spouse

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24
Q

Is there a requirement that one spouse has to consent to the other spouse being compelled to testify in a criminal case in VA?

A

No requirement. Privilege belongs to the testifying spouse.

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25
Q

If evidence is obtained in violation of the fourth amendment how should a court rule on a motion to dismiss the charges?

A

Deny the motion.

Remedy is to suppress the evidence.

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26
Q

Does a criminal defendant have a right to a trial by a nonjury (bench trial)?

A

No unilateral right, need approval from court and judge, and must plead not guilty

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27
Q

If a minor is found guilty by a jury can the minor have the judge decide the sentence?

A

Yes, unless minor has been previously convicted and sentenced as a minor

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28
Q

Is a request to consult with family, friends or others an adequate substitute for a request to consult an attorney once Miranda rights are given?

A

No. May constitute a waiver of Miranda.

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29
Q

Are involuntary confession admissible in VA?

A

No. VA follows Wigmore rule and involuntary confessions are inadmissible and a violation of the Due Process Clause of 14th Amendment.

30
Q

What is needed to show a confession is voluntary?

A

Commonwealth’s Attorney needs to show by a preponderance of the evidence that the waiver was knowing, voluntary, and intelligent.
Judged based on totality of circumstances.

31
Q

Which court in VA has jurisdiction over minors under 18 accused of a committing acts that would be crimes if committed by adults?

A

Juvenile and Domestic Relations Court.

32
Q

When is transfer from a Juvenile and Domestic Relations Court to a circuit court discretionary?

A

When there is probable cause that minor is at least 14 years old and the accused crime is not capital murder

33
Q

Once a minor is tried and convicted in circuit court as an adult, what is the effect?

A

Minor must always been tried as an adult.

Juvenile and Domestic Relation Court loses jurisdiction.

34
Q

Are interlocutory appeals in criminal cases permitted in VA?

A

No, except for appeals by the Commonwealth attorney on pretrial and pre-jeopardy rulings.

35
Q

Which courts in VA have original jurisdiction over misdemeanors?

A

Courts not of record - General district courts.

36
Q

Who decides whether the accused is indigent and counsel must be appointed?

A

Court after hearing oral evidence, the court must appoint counsel
Usually occurs at arraignment

37
Q

If counsel is appointed in a criminal case, who long does the appointment last?

A

All proceedings against accused, including any appeals.

Last until relieved or replaced by other counsel.

38
Q

Does plain error or harmless error test apply to an involuntary confession?

A

Harmless error - conviction will not be overturned if the government can show that there was other overwhelming evidence of guilt

39
Q

If a confession is the result of an illegal search, is the confession admissible?

A

Generally inadmissible, but consider totality of circumstances such as whether Miranda warnings were given, temporal proximity, intervening circumstances, and purpose of police misconduct.

40
Q

If a confession is the result of an illegal arrest, is the confession admissible?

A

Generally inadmissible, but consider totality of circumstances such as whether Miranda warnings were given, temporal proximity, intervening circumstances, and purpose of police misconduct.

41
Q

Does the privilege against self-incrimination apply to blood samples?

A

No - privilege against self-incrimination is limited to defendant’s communications “testimonial evidence”

42
Q

Function of a regular grand jury is to?

A

consider bills of indictment prepared by the Commonwealth’s attorney

  • if sufficient probable cause to return such indictment “a true bill”
  • between 5 and 9 members
43
Q

If a regular grand jury finds probable cause for a bill of indictment, what does it return?

A

a true bill

44
Q

What is the function of a special grand jury?

A

Investigate and report

between 9-11 members

45
Q

What happens after a special grand jury files a report of its findings?

A

Commonwealth attorney may rely on findings to prepare a bill of indictment and present that bill to a regular grand jury

46
Q

What is a presentment in a criminal case?

A

Written accusation of crime prepared and returned by regular grand jury from own knowledge or observation without a bill of indictment laid before them

47
Q

A person may not be tried for a felony unless ___.

A

an indictment or presentment has first been found by a regular grand jury, unless accused waives indictment or presentment

48
Q

May a person who is arrested for a felony be denied a preliminary hearing to determine whether there are reasonable grounds to believe a crime has been committed?

A

No - statutory right which may be waived if not raised.

49
Q

What words must the indictment contains for alleging murder?

A

feloniously did kill and murder

  • means, method, or intent need not be alleged
50
Q

After the preliminary hearing, when will the accused be discharged if the trial is not commenced?

A

a) five months if accused is in custody
b) nine months if accused is not in custody
- trial commences once jeopardy attaches

51
Q

Can an accused waive his right to a speedy trial by failing to oppose a motion for continuance?

A

Yes.

52
Q

Does a plea of nolo contendere waive all defenses?

A

Yes, except those based on jurisdiction.
- plea of nolo contendere is neither a confession of guilt or a declaration of innocence; always court to consider defendant guilty to impose a sentence

53
Q

How long does a defendant have to withdraw a plea of guilty or nolo contendere?

A

before a sentence is imposed or imposition of sentence is suspended; or within 21 days after final order

54
Q

Does a guilty plea waive a claim of ineffective assistance of counsel?

A

No.

55
Q

May a state retry a defendant whose first trial ends in a hung jury?

A

Yes.

56
Q

When is a double jeopardy defense waived?

A

later of 7 days before second trial is to begin or time prior to trial as the grounds for the motion arise

57
Q

In VA, does the prosecution for substantive offense bar a later prosecution for conspiracy to commit the offense?

A

Yes.

58
Q

If a criminal defendant is successful on appeal may he be retried on a higher offense than that of which he was convicted in the first trial?

A

No.

59
Q

What is a writ of actual innocence?

A

VA Supreme Court may issue writ of actual innocence based on new testing of human biological evidence.

60
Q

What must a sheriff do to charge a party with a felony?

A

1) may make an immediate arrest without a warrant (need probable cause)
2) bring arrestee to court for determination of incarceration pending trial or admission to bail
3) ask Commonwealth attorney to prepare a bill of indictment for presentment to regular grand jury

61
Q

May the suspect be tried upon an arrest warrant if he waives the right to indictment?

A

Yes.

62
Q

Must a sheriff obtain an arrest warrant if the misdemeanor was not committed in the sheriff’s presence?

A

Yes.

63
Q

What should counsel do to preserve rights on appeal when testimony of a witness is objected to and sustained by the judge?

A

Object to the ruling and make a proffer of what the evidence would be so that the circuit court can determine if there is reversible error.

64
Q

If a defendant files a motion for a presentence report and it is denied, what is the result?

A

Must be reversed. Statutory mandated that defendant should properly request and receive presentence report.

65
Q

What it is a presentence report in a criminal case in VA?

A

When person is convicted of felony, the defendant may request a presentence report prepared by probation officer to thoroughly investigate and report on the history of the accused and all other relevant facts

66
Q

When must the probation officer supply the defendant with the presentence report?

A

5 days prior to the presentation of the report in open court.
Accused has right to cross-examine and present additional facts

67
Q

When a person is charged with driving while intoxicated and reckless driving growing out of the same act or acts, and in convicted of one, what must the court do?

A

Dismiss the other.

68
Q

Do defendants in VA criminal proceedings have an absolute right to separate trials?

A

No. Commonwealth may make motion for good cause to trial defendants jointly unless the joint trial would cause actual prejudice to defendants.

69
Q

If a minor is properly tried and convicted, how is the sentencing handled?

A

Court decides the sentence

Unless the minor has previously been convicted and sentenced as an adult.

70
Q

How are criminal cases handled in VA?

A

Jury trials are bifurcated into a guilt phase and a sentencing phase.
Jury’s sentence is merely a recommendation and judge is not bound

71
Q

Is the court required to exclude witnesses in a criminal proceeding until the witness is called as witness?

A

Yes on motion of either party. Complaining witness may remain in the courtroom unless there is prejudice

72
Q

Can the defendant make a motion on the conclusion of the Commonwealth’s case in chief to exclude evidence based on an illegal arrest?

A

No. Must be raised at least 7 days before trial.

VA Essay Topics (23 decks)

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