Crim Law/Pro Essay Rules Flashcards
(219 cards)
1
Q
Embezzlement
A
Fraudulent conversion of the tangible or intangible personal property of another with intent to deprive the owner thereof by a person to whom the property was entrusted
2
Q
Under VA law, a D may be convicted of and punished for ________ even though embezzlement was provided at trial
A
Larceny
3
Q
Conspiracy
A
An agreement between two or more persons, entered into with the intent to agree to commit a felony
4
Q
A person is in custody when
A
1) A reasonable person under the circumstances would not feel free to terminate the interrogation and leave, and
2) The relevant environment presents the same inherently coercive pressures akin to station house questioning
5
Q
Interrogation can be
A
Express questioning or any words or actions by the police that are likely to elicit an incriminatory response
6
Q
The Fifth Amendment is applicable to the states via
A
The Due Process Clause of the Fourteenth Amendment
7
Q
The Fifth Amendment provides that
A
“No person shall be compelled to be a witness against himself.”
8
Q
If Miranda warnings are not given during custodial interrogation, any statements made by the accused are considered ________ and are ________
A
“Involuntary,” not admissible against them at trial in order to demonstrate his guilt
9
Q
Miranda warnings protect against compelled self-incrimination, and they must be given to
A
Anyone in police custody and accused of a crime prior to interrogation by the police
10
Q
If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee warnings and obtain a subsequent confession, the subsequent confession will be ________ if the ________
A
Inadmissible; “question first, warn later” nature of the questioning was intentional
11
Q
If there are subsequent confessions following an involuntary confession, there is a presumption that these later confessions are also tainted. This presumption can only be rebutted by ________
A
Clear and convincing evidence to the contrary
12
Q
Felony murder is
A
Any murder committed, whether intentional or accidental, during the commission of or during an attempt to commit certain dangerous felonies, including burglary, arson, rape, robbery, and kidnapping
13
Q
A P2 is one who not only is
A
Present at the crime’s commission, but also either
1) Commits some overt act (e.g, inciting, encouraging, advising, or assisting in the commission of the crime); or
2) Shares the principal’s criminal intent (i.e. procures, encourages, countenances, or approves commission of the crime)
[Mere presence during the commission of a crime and subsequent flight do not constitute sufficient evidence to convict a person as a principal in the second degree]
14
Q
In a felony case, every P2 may be
A
Indicted, tried, convicted, and punished in all respects as if he was the P1
15
Q
T/F P2 or ABF also liable for incidental probable consequences
A
True
16
Q
If a crime that is an incidental probable consequence of concerted action results, whether the crime was originally contemplated or not,
A
All who participate in any way in bringing it about are equally answerable for and bound by the acts of every other person connected with the consummation of the resulting crime
[Here, even if Teeny did not intend to participate in Vincent’s murder, the murder was a probable consequence of his concerted action to commit armed robbery of the convenience store with Butch]
17
Q
Withdrawal (accomplice liability) - If the perpetration of a felony has begun, one who is aiding and encouraging its commission of a felony may nevertheless escape criminal liability for the felony if he has
A
Withdrawn all aid and encouragement for the felony
The withdrawal must be evidenced by acts or words showing his confederates that he opposes the contemplated crime, and it must be in due time
18
Q
T/F Baker, effectively withdrew from the conspiracy by telling the other two co-conspirators that he would no longer be involved in the plan, a position which the others ratified by denying him any part of the proceeds from the intended crime
A
True
19
Q
T/F Although Conrad abandoned the plan by reporting the conspiracy to the police, he did not also tell Able of his abandonment of the plan
A
True
20
Q
The scope of liability for incidental probable consequences applies to
A
P2 or ABF
21
Q
Although a conviction on the substantive offense bars a subsequent conspiracy conviction, a D may be convicted of both the completed substantive offense and the underlying conspiracy if the convictions occur
A
In a single trial
22
Q
The Fourth Amendment, which is applicable to the states through the DPC of the Fourteenth Amendment, broadly prohibits
A
Unreasonable searches and seizures
23
Q
Under the Supreme Court’s exclusionary rule, evidence obtained in violation of the ________ may not be used in evidence against the person whose rights were ________
A
Fourth Amendment; violated
24
Q
To be reasonable, searches must often be pursuant
A
To a warrant based on probable cause that evidence will be found in the place searched
25
Under the Fourth Amendment, police may conduct a **warrantless search incident to an arrest** as long as the **arrest** was made on
Probable cause
26
When may police conduct a warrantless search incident to an arrest?
When the arrest was based on PC
27
Probable cause
Probable cause is present, if at the time of the arrest, the officer has within her knowledge **reasonable, trustworthy facts and circumstances** sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law. [Based on totality of the circumstances]
28
In a search incident to arrest, police may search
The person and **areas into which he might reach** to obtain weapons or destroy evidence (his "wingspan")
29
Under the Fourth Amendment, a police officer's interest in assuring that an arrestee does not have dangerous materials justifies an inspection of the physical attributes of ________. However, the officer may not, without a warrant, ________
A seized cell phone; search digital information on the phone
30
Under the Fourth Amendment, police may search an **entire vehicle - including closed containers within the vehicle** - that has been lawfully impounded as long as the search is part of
An established routine
31
Under VA law, to prove **possession of a controlled substance with intent to distribute**, the prosecution must show that
The D manufactured, sold, gave, distributed, or possessed a controlled substance with the intent to manufacture, sell, give, or distribute the controlled substance
32
Intent to distribute can be shown by **direct evidence** such as ________ or circumstantial evidence such as ________, ________, and ________
An **admission; the packaging of the controlled substance; substantial amounts of cash discovered on the D's person; digital scales
33
Intent to distribute (direct evidence)
Admission
34
35
Abduction occurs when
A person **by force or intimidation** seizes, takes, transports or detains another person with intent to deprive that person of liberty
36
Attempt
**When one intends to commit a crime** and commits a **direct, but ineffectual act** towards the commission of the crime
[Formed intent to rob bank and entered bank w toy gun, approached teller, and announced his purpose]
37
T/F To sustain a conviction for conspiracy to robbery, proof of an overt act in furtherance of the conspiracy is necessary for conviction
False
38
To sustain a conviction for conspiracy to robbery, is proof of an over act in furtherance of the conspiracy necessary?
No
39
Where either the prosecutor or defense attorney wishes to make a **motion to suppress evidence** in the circuit court, the motion must be
In writing, filed 7 days before trial
40
In a criminal trial, where either attorney makes a motion to separate the witnesses:
The witnesses shall be excluded from the courtroom when not testifying, except the complaining witness who may remain **if it would not impair the conduct of a fair trial**
41
A complaining witness may remain in the courtroom if it would not impair
The conduct of a fair trial
42
T/F A court is required, on motion of either party, to exclude the witnesses to be called in a trial. However, this is subject to an exception that permits victims to remain in the courtroom during the trial, unless the court finds that the presence of the victims would impair the conduct of a fair trial
True
43
In a criminal case, at the close of the Commonwealth evidence, which of the following arguments can be made?
That viewed in a light most favorable to the Commonwealth, the evidence would be insufficient as a matter of law to sustain a conviction
That certain evidence the Commonwealth presented should carry less weight, causing the evidence overall to be insufficient as a matter of law to sustain a conviction
44
Accessory after the fact
A person who knows an offense has been committed and receives, relieves, comforts, or assists the felon in escaping punishment (family members excluded from statute)
45
Show-up identification procedure is not overly suggestive when the witness has sufficient ________ and ________ to ________ and is not
**Time and ability**; look at the suspect; pressured into identifying someone
[Other facts must exist other than there was only one D]
46
T/F Motion seeking to exclude evidence must be raised in writing before trial by motion filed and notice given to opposing counsel not later than seven days before trial in circuit court. [7 day rule only applies to CC]
True
47
T/F Exception to motion to suppress evidence being in writing before trial by motion filed and notice given to opposing counsel not later than seven days before trial in circuit court
[Uncommon in practice for judge to rule that D simply cannot make his motion because motion was not made 7 days before trial. Important to mention: CC can still allow motion to be made; D must ask for it]
True
48
T/F It is not necessary that the victim actually **see** a firearm **to convict for using a firearm in the commission of a felony** - this could be proved by circumstantial evidence
True
49
T/F To **prove use** of a firearm in the commission of a felony, it is not necessary that the victim have actually **seen a firearm, nor that one be admitted into evidence at the trial**
True
50
The **existence and use** of a firearm can be established by
Circumstantial evidence
51
Motions to strike test
The sufficiency of the evidence
52
Motion to strike **test the sufficiency of the evidence** and when **made at the conclusion of the Commonwealth's case**, they are viewed in a light most favorable to
The Commonwealth
53
T/F An attempt to suppress particular items of evidence, such as **witness statements of identification or items of physical evidence**, must be made by
A motion to suppress
54
Probable cause is a **reasonable belief that a crime has been committed** and that
A particular person committed it
55
T/F In circuit court, **motions to suppress evidence** must be filed in writing, with notice to opposing counsel, at least seven days before trial
True
56
T/F Since the court entertaining a motion to strike must view the evidence in light most favorable to the Commonwealth, it will be sufficient to deny the motion to strike and allow this issue to be decided by the jury
True
57
A police officer may arrest a person without a warrant when the officer has
Probable cause to believe that a felony has been committed and that the person before them committed it
58
A search incident to lawful arrest does not require a warrant if the **arrest** was made on
Probable cause
59
During a search incident to arrest, the police may search
The person and **areas into which the person might reach** to obtain weapons or destroy evidence (the arrestee's wingspan)
60
Emergency aid exception
Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless search
61
The emergency aid exception to the warrant requirement permits officers to make warrantless entry into private residences if they
**Reasonably believe** that a person is in need to emergency assistance or that there is a threat of serious harm to another
62
Under the plain view exception to the warrant requirement, police may make a **warrantless seizure** from a residence when they
1) Are legitimately on the premises
2) Discover evidence, fruits or instrumentalities of crime, or contraband
3) See such evidence in plain view; and
4) It is immediately apparent that the item is evidence, contraband, or a fruit or instrumentality of a crime
63
Under VA law, first degree murder involves
Poison, lying in wait, imprisonment, starvation, or **any willful, deliberate, and premeditated killing** that does not fall within aggravated murder
64
Under VA law, voluntary manslaughter is defined as
**Unlawful killing without malice**, including a killing committed during mutual combat, in the heat of which the D struck the blow that killed the D. Malice, however, exists if the D intends to kill
65
In VA, involuntary manslaughter is
**Accidental killing**, contrary to the intention of the parties, **during the performance of some unlawful but not felonious act**, or during the **improper performance of a lawful act amounting to criminal negligence**
66
T/F In VA, it is unlawful for a person convicted of a felony to **knowingly and intentionally** possess or transport firearms
True
67
T/F In VA, you can be charged for both attempt and the underlying felony but can only be convicted for one
True
68
Can you be charged for both attempt and the underlying felony?
You can be charged for both attempt and the underlying felony but can only be convicted for one
69
Can you be convicted for both attempt and the underlying felony?
No, you can only be convicted for one
70
Withdrawal is generally not a defense to a charge of
Conspiracy
71
Withdrawal is generally not a defense to a charge of conspiracy because
The conspiracy is complete as soon as the agreement is made
72
T/F Even in jurisdictions where withdrawal can be a defense to conspiracy, the D must thwart the success of the conspiracy, for example, by informing the police
True
73
An attempt is
A direct act done with the intent to commit a crime that falls short of committing the crime
74
Robbery includes
The taking, with intent to steal, of the personal property of another, from their person or in their presence, against their will, by violence or intimidation. [Aggravated form of larceny]
75
Abandonment is not a defense to
Attempt
76
Co-conspirator Liability - A conspirator is liable for the crimes of all other conspirators if the crimes were
1) Committed in furtherance of the objectives of the conspiracy, and
2) Natural and probable consequence of the conspiracy in other words, foreseeable
[Butch and Teeny presumably agreed and planned to rob the store together. The murder was a natural and probable consequence of the conspiracy bc it is foreseeable that a killing would happen during an armed robbery]
77
A conspirator may meet the requirements of accomplice liability by
**Aiding the co-conspirators' crimes** and therefore liable for their crimes as an accomplice
78
Accessory before the fact
One who orders, counsels, encourages, or otherwise aids and abets another to commit an offense, but who is not present during the commission
79
Withdrawal - Conspiracy
A person may **limit their liability** for subsequent acts of the other members of the conspiracy, including the target crime for which the conspiracy was formed, if the person withdraws
80
To withdraw, the person must (conspiracy)
**Perform an affirmative act** that notifies all members of the conspiracy, and this notice must be given in time for them to have the opportunity to abandon their plans
81
A D may be convicted of both the **completed substantive offense** and the **underlying conspiracy** if the convictions occur
In a single trial
82
T/F Under the Virginia Constitution, an individual accused of a felony has the right to a trial in a court of record, before an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty
True
83
Under the VA Constitution, an individual accused of a felony has the right to ________, before ________, without ________
A trial in a court of record, an impartial jury of his vicinage, whose unanimous consent he cannot be found guilty
84
T/F An accused does not have a unilateral right to a nonjury trial
True
85
An accused does not have a unilateral right to
A nonjury trial
86
Does an accused have a unilateral right to a nonjury trial?
No
87
The court hears and determines the case without a jury if the accused, after being advised by their counsel, either
1) Personally tenders a plea of guilty; or
2) Pleads not guilty and consent to trial without a jury, and the Commonwealth Attorney and the court concur on the record
88
T/F Under VA law, the juvenile and domestic relations courts ("JDRCT") have exclusive **original jurisdiction** over **matters of juveniles under the age of 18 accused of committing delinquent acts that would be crimes if committed by an adult**
True
89
Which court has exclusive OG over matters of juveniles under the age of 18 accused of committing delinquent acts that would be crimes if committed by an adult?
Juvenile and domestic relations courts ("JDRCT")
90
When a juvenile is charged with certain violent felonies, including felony murder and robbery, the prosecutor must elect to have the JDRCT determine only
1) Whether there is **probable cause** and whether the juvenile is **at least 16**; or
2) Whether the accused should **remain for disposition within the juvenile court or be transferred to the adult court**
91
The Fifth Amendment, which is applicable to the states via the Due Process Clause of the fourteenth Amendment, provides that
"No person shall be compelled to be a witness against himself"
92
In the case of Miranda v. Arizona, the Supreme Court held that a detainee may invoke his Fifth Amendment rights to remain silent at
Any time prior to or during an interrogation
93
The invocation of the right (to remain silent) must be
Express, ambiguous, and unequivocal
94
Once the invocation of the right to remain silent is made, the police must
Stop all questioning in relation to the particular crime for which the detainee is being held
95
Police may reinitiate questioning after the detainee has invoked the right to remain silent, as long as
They "scrupulously honor" the detainee's request
This means, at the very least, that the police **may not badger** the detainee into talking and **must wait a significant time before reinitiating questioning**
96
Under the **Sixth Amendment** of the U.S. Constitution, the **D in a criminal prosecution** has the right to confront
Adverse witnesses
97
Under the Sixth Amendment of the U.S. Constitution, the D in a criminal prosecution has the right to confront adverse witnesses
As part of this, the D must have the opportunity to
Cross-examine any witnesses testifying against the D regarding both their **recollection of events** and their **credibility**
98
T/F Confrontation clause of Sixth Amendment guarantees the right of cross examination, and a D can cross-examine a witness as to any evidence that bears on the credibility of the witness
True
[Indeed, a plea bargain in exchange for one's testimony is highly relevant bc it means the witness' testimony may be based on self interest]
99
The Fourth Amendment, which is applicable to the states through the DPC of the Fourteenth Amendment, broadly prohibits
Unreasonable searches and seziures
100
A seizure can be defined as the
Exercise of control by the government over a person or thing
101
An exercise of control by the government over a person or thing
Seizure
102
________ constitute seizures of the person, so they must be ________ to comply with ________
Arrests; reasonable; the Fourth Amendment
103
A police officer may arrest a person without a warrant when they have
PC that a felony has been committed and that the person before them committed it
104
Probable cause to arrest is present when,
At the time of arrest, the officer has within their knowledge **reasonably trustworthy facts and circumstances** sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law
105
In VA, an officer may arrest any person who
Commits any crime in the officer's presence, or who the officer has **reasonable grounds or PC** to suspect has committed a felony not in the officer's presence
106
An unlawful arrest, by itself, has no impact on a subsequent criminal prosecution
Thus, if the police improperly arrest a person, they may detain them if they have probable cause to do so, and the invalid arrest is
Not a defense to the offense charged
107
Does an unlawful arrest have an impact on a subsequent criminal prosecution?
An unlawful arrest, by itself, has no impact on a subsequent criminal prosecution
108
The Fourth Amendment requires evidentiary searches and seizures to be reasonable, and to be reasonable, searches often must be pursuant to
A warrant based on PC that evidence will be found in the place searched
109
In general, no police officer may search any place, thing, or person, except by
Issue of a properly issued search warrant
110
Automobile exception
**If a police officer has PC to believe that an automobile** contains contraband or fruits, instrumentalities, or evidence of a crime, the officer may search the automobile without a warrant
If police have full PC to search a vehicle, they can search the entire vehicle (including the trunk) and all containers within the vehicle that might contain the object for which they are searching
111
T/F In order to challenge a warrantless search or seizure, a person must also demonstrate that the evidentiary search or seizure violated their **own reasonable expectation of privacy**
Whether a person has a reasonable expectation of privacy generally is based on the totality of circumstances, considering factors such as ownership and location
The Supreme Court has held that a person has a reasonable expectation of privacy any time that they owned or had a right to possession of the place searched
Evidence illegally obtained must be excluded under the exclusionary rule
True
112
In order to challenge a warrantless search or seizure, a person must also demonstrate that
The evidentiary search or seizure violated their **own reasonable expectation of privacy**
113
Whether a person has a **reasonable expectation of privacy** generally is based on ________, considering factors such as ________, and ________
The totality of the circumstances; ownership; location
114
The Supreme Court has held that a person has a reasonable expectation of privacy any time that they
**Owned or had a right to possession** of the place searched
115
Evidence illegally obtained must be excluded under the
Exclusionary rule
116
What kind of evidence must be excluded under the exclusionary rule?
Evidence illegally obtained
117
Search incident to arrest exception
After placing a suspect under arrest, an officer may search the person and areas into which the person might reach to obtain weapons or destroy evidence
**If the police arrest the occupant of an automobile, the police may search the car if the officer reasonably believes that the car may contain evidence of the crime for which the arrest was made**
118
T/F Search incident to arrest exception - if the police **arrest the occupant of an automobile**, the police may search the car if the officer reasonably believes that the car may contain evidence of the crime for which the arrest was made
True
119
A person in ________ must, prior to ________, be given the Miranda warnings and clearly informed that: ________; ________; ________; ________
Custody, interrogation
1) They have the right to remain silent
2) Anything they say can be used against them in the court of law
3) They have the right to an attorney
4) An attorney will be afforded to them if they cannot afford one
120
When Miranda warnings required
**Anyone in police custody and accused of a crime,** no matter how minor the crime, must be given Miranda warnings
121
If Miranda warnings are not given during a custodial interrogation, any statements made by the accused or evidence derived from those states will
Not be admissible against the accused at trial in order to demonstrate their guilt
122
Stopping a car is a
Seizure for Fourth Amendment purposes
123
Is stopping a car considered a seizure for fourth amendment purposes?
Yes
124
Generally police officers may not stop a car unless they at least have
Reasonable suspicion to believe that a law has been violated
125
An auto stop constitutes a seizure of not only the driver but
The passengers
126
If an officer has PC to believe that a traffic law has been violated, the officer may
Stop the suspect's automobile, even if the officer's ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop
127
Provided that a police officer has lawfully stopped a vehicle, in the interest of officer safety, the officer may ________
Moreover, if the officer reasonably believes that the detainee is armed and dangerous, she may ________
She may also _______
Order the occupants (vehicle's driver and passengers) to get out; conduct a frisk of the detainee; search the passenger compartment of the vehicle to look for weapons, even after the driver and other occupants have been ordered out of the vehicle
128
Vehicle stop - If a vehicle has been properly stopped, a police officer may
**Order the driver out of the vehicle** even without suspicion of criminal activity
**Search the passenger compartment of the vehicle**, even if the officer has not arrested the occupant and has ordered the occupant out of the vehicle, **provided** the search is limited to those areas in which a weapon may be placed or hidden **and** the officer possesses a reasonable belief that the occupant is dangerous
129
During a vehicle stop, an officer may
Order the driver out of the vehicle even without suspicion of criminal activity
Search the passenger compartment of the vehicle even if the officer had not arrested the occupant and has ordered the occupant out of the vehicle, provided the search is limited to those areas in which a weapon may be placed or hidden and the officer possesses a reasonable belief that the occupant is dangerous
130
During a vehicle stop, an officer may
Order the driver out of the vehicle even without suspicion of criminal activity
131
During a vehicle stop, an officer may order the driver out of the vehicle even without suspicion of criminal activity and
Search the passenger compartment of the vehicle even if the officer had not arrested the occupant and has ordered the occupant out of the vehicle, provided the search is limited to those areas in which a weapon may be placed or hidden and the officer possesses a reasonable belief that the occupant is dangerous
132
During a vehicle stop, can a police officer order the driver out of the vehicle even without suspicion of criminal activity?
Yes
133
A dog sniff of the car does not implicate the Fourth Amendment as long as police officers have
Lawfully stopped a car and do not extend the stop beyond the time necessary to issue a ticket and conduct ordinary inquires incident to such stop
134
During a routine traffic stop, a dog "alert" to the presence of drugs can form the basis for
PC to justify a search of the automobile
135
If a police officer conducts a frisk, the officer may
Reach into the suspect's clothing and seize any item that the officer reasonably believes, based on its plain feel, is a weapon or contraband
136
The exclusionary rule prohibits the introduction, at a criminal trial, of evidence obtained in violation of the D's
Fourth, Fifth, or Sixth Amendment rights
137
Fruit of the poisonous tree
Generally not only must **illegally obtained evidence** be excluded, but also all evidence **obtained or derived** from exploitation of that evidence
138
T/F The discovery rules in VA allow a trial court to order discovery of statements or confessions of the D
Discoverable items include written and recorded statements of the accused in connection with the particular case, as well as oral statements made to a law enforcement officer
There are two requirements:
1) The discoverable items must be relevant to the case, and
2) The items must be known by the Commonwealth's Attorney to be within the possession, control, or custody of the Commonwealth
[In this case, while the convos are part of the investigation, they are not necessarily considered internal docs. They are statements made by the D. Not only were Alvin's statements intercepted by law enforcement officers and transcribed into a written and recorded format, the transcripts are also relevant to the case and are in the control of the Commonwealth's Attorney. Therefore, the court should grant Alvin's motion]
True
139
T/F The discovery rules in VA allow a trial court to order discovery of statements or confessions of the D
True
140
T/F Discoverable items include written and recorded statements of the accused in connection with the particular case, as well as oral statements made to a law enforcement officer
There are two requirements:
1) The discoverable items must be relevant to the case, and
2) The items must be known by the Commonwealth's Attorney to be within the possession, control, or custody of the Commonwealth
[In this case, while the convos are part of the investigation, they are not necessarily considered internal docs. They are statements made by the D. Not only were Alvin's statements intercepted by law enforcement officers and transcribed into a written and recorded format, the transcripts are also relevant to the case and are in the control of the Commonwealth's Attorney. Therefore, the court should grant Alvin's motion
True
141
T/F Suppression hearing - A D has a right to a suppression hearing at which the judge, as a matter of law, determines the admissibility of the evidence out of the jury's presence
The proponent of a motion to suppress has the burden of showing by a preponderance of evidence that a cognizable injury was committed
After the proponent has made a p/f case, the burden shifts to the Commonwealth to show that there was a warrant, or that exigent circumstances, consent, or some other condition obviated the need for a warrant
For an individual to object to search or seizure under the Fourth Amendment, the individual must have standing, that is, their own reasonable expectation of privacy must have been violated
Standing = Reasonable expectation of privacy
Whether the individual has a reasonable expectation of privacy is generally decided on a case-by-case basis under the totality of circumstances, considering factors such as **ownership** of the place searched and the **location** of the item seized
What a person knowingly exposes to the public, even in their own home or office, is not protected
True
142
A D has a right to a suppression hearing at which the judge, as a matter of law, determines
The admissibility of the evidence out of the jury's presence
143
The **proponent of a motion to suppress** has the burden of showing by
A **preponderance of evidence** that a cognizable injury was committed
After the proponent has made a p/f case, the burden shifts to the Commonwealth to show that there was a warrant, or that exigent circumstances, consent, or some other condition obviated the need for a warrant
144
For an individual to object to search or seizure under the Fourth Amendment, the individual must have
Standing, that is, their **own reasonable expectation of privacy** must have been violated
145
Standing =
Reasonable expectation of privacy
146
Whether the individual has a reasonable expectation of privacy is generally decided on
A case-by-case basis under the totality of circumstances, considering factors such as **ownership** of the place searched and the **location** of the item seized
147
What a person knowingly exposes to the public, even in their own home or office, is
Not protected
148
A warrant is not required if police have a **voluntary and intelligent consent** to search a person's home obtained from any person with
An apparent equal right to use or occupy the vehicle. The search is valid even if it is discovered that the person consenting did not actually have such right, as long as the police reasonably believed that the person had the authority to consent
149
T/F Generally, a D's spouse may not be compelled to testify against the D in a criminal case
However, the privilege belongs to the testifying spouse; a spouse does not have to consent to the other testifying
True
150
The search is valid even if it is discovered that the person consenting did not actually have such right, as long as
The police **reasonably believed** that the person had the authority to consent
151
In VA, jury trials are bifurcated into
A guilt phase and sentencing phase
152
Once the D has been found guilty of a felony, a separate proceeding is initiated to determine
The punishment to be imposed
153
During the sentencing phase, VA law allows the Commonwealth's Attorney to
Introduce the D's prior criminal history through attested copies of the final order of prior convictions and the punishments imposed
154
A lack of testimony by the D regarding prior felonies does not preclude
The introduction of such felonies by the Commonwealth's Attorney in the sentencing proceeding
155
Any aggrieved party may appeal to the court of appeals from
A final conviction in a criminal case
156
Steps to perfect an appeal from CC to VA Court of Appeals
To file a notice of appeal with the clerk of the trial court within 30 days from the final order, with copies being sent to all opposing counsel. The 30 day period may be extended by the court of appeals for good cause shown. The timely filing of the notice perfects the appeal
157
Under the Fourth Amendment and VA law, police may conduct a valid warrantless search if they have
Voluntary consent to do so, though the scope of the search is limited to the scope of the consent
158
Consent - scope of search is limited to
The scope of the consent
159
Voluntariness is to be determined
From all the of the circumstances, and knowledge of the right to refuse consent is just one factor to be considered in determining voluntariness. Further, any person with the apparent right to use or occupy the vehicle may consent to a search
160
Who may consent to a search of a vehicle?
Any person with the **apparent right to use or occupy** the vehicle
161
VA law makes it unlawful for a person to ________ possess a controlled substance without a prescription
Knowingly or intentionally
162
A person acts knowingly with respect to the nature of their conduct when they are
Aware that their conduct is of that nature, or certain circumstances exist
163
Possession may be constructive, meaning that
Actual physical control need not be proved when the “contraband is located in an area within the D's dominion and control”
164
Common law burglary
Breaking and entering into a dwelling house of another in the nighttime with the intent to commit a felony within
[Intent to commit a felony can be inferred by the presence and by the taking of items valued over $10,000 from the home]
165
Statutory burglary
The entering at night with or without breaking
The entering in daytime by breaking; or
The entering and concealing of oneself;
Within a **dwelling or place of business**
With intent to commit any felony
166
VA recognizes statutory burglary as
A lesser included offense of common law burglary
167
Under VA law, if statutory burglary occurs **at night**, the elements consist of
Entering, with or without breaking, a dwelling or place of business with intent to commit a felony
168
A common law dwelling house is a place that is
Regularly used for sleeping
[And in VA, a house remains a **dwelling even when it is unoccupied so long as the occupant intends to return for that purpose**]
169
At common law a dwelling is a place that is regularly used for sleeping
And, in VA, a house remains a dwelling even when it is unoccupied so long as
The occupant intends to return for that purpose
170
In VA, a house remains a dwelling even when it is unoccupied so long as the occupant
Intends to return for that purpose
[Thus, it does not matter that the house in Northern Neck was not Vicky's primary residence or that she was not at home when the break in occurred bc she regularly stayed the on weekends and left with the intent to return for that purpose]
171
VA courts use the ________ understanding of attempt, which is
Common law; a direct act done with the intent to commit a crime that falls short of completing the crime
172
Extortion involves
Threatening injury to the character, person, or property of another, **or accusing another of any offense**, and thereby extorting money, property, or any other pecuniary benefit
173
Under the VA Rules of Prof Resp, a lawyer must **not counsel or assist** a client in conduct that the lawyer knows is
Criminal or fraudulent
174
A lawyer **may not commit a criminal or deliberately wrongful act** that reflects adversely on the lawyer's
Honesty, trustworthiness, or fitness to practice law
175
Under the VA Rules of Prof Resp, a lawyer must not reveal information protected by the attorney-client privilege unless
The information meets one of the exceptions
176
One exception to the rule that a lawyer must not reveal information protected by the attorney-client privilege is that a lawyer must **promptly reveal the stated intention of the client to**
Commit a crime, as well as the information necessary to prevent the crime, when the crime is **reasonably certain** to result in **substantial bodily harm or substantial injury** to the financial interests or property of another
**If feasible**, the lawyer must first advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the lawyer must reveal the criminal intention of it is not abandoned
177
In VA, any crime that would be ________, ________, or ________ under common law may be charged as larceny
Larceny; embezzlement; false pretenses
178
False pretenses
**Obtaining of $ or property from a person** by false pretenses with intent to defraud (larceny statute)
Essential element of larceny by false pretenses: both title to and possession of property must pass from victim to D
Obtaining ownership not required
179
Essential element of larceny by false pretenses
Both title to and possession of property must pass from victim to D
Obtaining ownership of property not required
180
Grand larceny is committed when a person commits
Larceny **from the person of another**, taking money or things worth $5 or more
Simple larceny, **not from the person of another**, taking goods and chattels worth $1,000 or more; or
Simple larceny, not from the person of another, taking any firearm, regardless of its value
181
Petit larceny
Larceny **from the person of another** of something worth less than $5, or
Simple larceny, **not from the person of another**, of something worth less than $1,000
182
Presumption of larceny
One in the **unexplained and exclusive possession** of recently stolen property can be presumed to be guilty of larceny
183
First degree murder
Murder is the unlawful killing of another with malice aforethought
184
Malice aforethought exists if
There are no attendant circumstances to excuse or justify the killing and it was committed with
1) Intent to kill
2) Intent to inflict great bodily injury
3) Reckless indifference to an unjustifiably high risk to human life, or
4) The intent to commit a felony
185
Malice aforethought exists if there are no attendant circumstances to excuse or justify the killing and it was committed with
1) Intent to kill
2) Intent to inflict great bodily injury
3) Reckless indifference to an unjustifiably high risk to human life, or
4) The intent to commit a felony
186
Intentional use of a deadly weapon creates
An inference to kill
[Jerry's intentional use of the gun, a deadly weapon, creates an inference of his intent to kill]
187
What creates an inference to kill?
Intention use of a deadly weapon
188
In VA, first degree murder is murder (other than aggravated murder) by:
1) Poison
2) Lying in wait
3) Imprisonment
4) Starvation; or
5) Any willful, **deliberate, and premeditated** killing that does not fall within aggravated murder
189
Deliberate means
The D made the decision to kill in a cool and dispassionate manner
190
Premeditated means
The D actually reflected on the idea of killing
191
T/F Generally, the accused has no right to be tried for only one offense at a time if they are charged with several related offenses
[Police choosing to question Bob about Mickey's death during custodial interrogation after he was arrested for possession of drugs does not cause the two offenses to become related offenses]
True
192
T/F If the charges are unrelated, justice would require there to be separate trials
[Since the drug charges are unrelated to the murder offense, justice would require there to be separate trials]
True
193
There is no basis to dismiss a case even if there was a Fourth Amendment violation. The proper remedy is to
Suppress the evidence, not dismiss the charges
[The Commonwealth might have little choice but to nolle prosequi (voluntarily dismiss) some charges if some evidence is suppress, but at least the hit and run charge is probably still viable, even if all evidence resulting from the stop is suppressed]
194
A police officer may stop a suspect based on reasonable articulable suspicion that the suspect
Has committed or is committing a crime
***The same principle allows stops of vehicles***
195
A police officer may stop a car based on reasonable articulable suspicion that the suspect
Has committed or is committing a crime
196
T/F Reasonable, articulable suspicion based on
1) A very recent report of a hit and run in the area
2) His observation of swerving and erratic driving, and
3) A dent with red paint
Furthermore, once the stop occurred, the police officer acted properly and within the appropriate scope of a Terry stop, when he asked for his license and registration
During that legitimate stop, he smelled alcohol
True
197
Police may make a stop if they have reason to believe
Criminal activity is afoot
[Here, they had reason to believe that Brian was the person involved in the hit and run and that Brian was driving under the influence of alcohol. The suspicion was based on the report the officer received and upon his own observations]
198
T/F During a lawful stop, if an officer gains PC to believe the car contains contraband, or fruits, etc., he may search the car
[Here, the officer smelled a strong odor of alcohol in Brian's car. When combined with the other information the officer had (the dent, the driving erratically, etc., the officer had PC to conduct the search]
True
199
T/F After placing a suspect under arrest, an officer may search the car that the suspect was in if the officer had PC to believe that the car may contain evidence of the crime for which the arrest was made
True
200
T/F The court correctly denied the motion to suppress Brian's remarks bc
1) The statement was voluntary; and
2) It did not violate Miranda bc the statement was not in response to "interrogation"
True
201
T/F The Fifth Amendment does not preclude evidentiary use of a statement that was volunteered and that was not in response to any police questioning
[For that reason, it does not matter whether Brian's statement was made while in custody; whether it was preceded by a waiver of Miranda rights; and whether it was preceded by an invocation of the right not to be questioned without an attorney. The statement also did not violate Sixth Amendment right to counsel, which attaches only upon commencement of adversarial proceedings]
True
202
T/F A court may not admit evidence of Brian's refusal to take a breathalyzer test unless Brian raises the absence of a chemical test in defense of the charges
True
203
T/F An objection under the VA code provides that a person arrested for drunk driving may refuse the test and that his refusal may not be admitted against him on the drunk driving charge except to refute a defense based on the absence of a chemical test
The refusal also would be admissible in a separate trial on the charge of refusing to submit to a breathalyzer test
True
204
Misdemeanor charges are tried in
The GDC
[Absolute right to appeal for a trial de novo in CC, within 10 days of conviction]
205
T/F For a felony, Brian must have a preliminary hearing in the GDC, but the charge must be tried in the CC
[Upon conviction of a misdemeanor or felony in CC, Brian could file a petition for appeal in the court of appeals]
True
206
Guilt may be proved by
Circumstantial as well as by direct evidence
207
Receiving stolen goods
A person who buys or receives stolen goods, or who aids in concealing the goods, while knowing that the goods were stolen is guilty of larceny of those goods
208
One in the unexplained and exclusive possession of recently stolen property can be presumed to be guilty of
Larceny
209
Entrapment
For entrapment to exist, two conditions must be satisfied:
1) The crim design must have originated with the law enforcement officers
2) The D must not have been in any way predisposed to commit the crime
There is no entrapment if the police officer merely provides the opportunity for the commission of a crime by one otherwise ready and willing to commit it
However, the predisposition of the D must exist prior to the govt's initial contact with the D
A mere inclination to engage in illegal activity is not adequate proof of predisposition
210
T/F Separate trials (severance) - On motion of the Commonwealth, the court is to order persons charged with participating in contemporaneous or related acts constituting an offense (or offenses) to be tried jointly, unless joint trial would cause actual prejudice to a D, in which case the court must order severance as to that D or provide other appropriate relief
True
211
T/F It is within the court's discretion whether to sever a trial
True
212
T/F Search incident to arrest exception - if the police arrest the occupant of an automobile, the police may search the car if the officer reasonably believes that the car may contain evidence of the crime for which the arrest was made
True
213
T/F Stop & frisk - Police have the authority to briefly detain a person for investigative purposes even if they lack PC to arrest
To make such a stop, police must have reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime
True
[Here, Officer Wilson saw Jerry walking in the early morning ours down a street after a house in a nearby neighborhood had been burglarized earlier that evening. He thought Jerry might have been involved in the burglary, but he did not have reasonable suspicion. There were no articulable facts of criminal activity or involvement in a completed crime; Jerry was merely walking down a street hours after a burglary had happened in a nearby neighborhood. Therefore, Officer Wilson would not have been able to conduct a lawful stop and frisk. However, Officer Wilson did not contact a lawful stop and frisk]
214
Police have the authority to briefly detain a person for ________ even if they lack ________ to arrest
Investigative purposes; PC
215
To make such a stop (briefly detain), police must have ________ supported by ________ of ________ or ________
Reasonable suspicion; articulable facts; criminal activity; involvement in a completed crime
216
T/F Murder is the unlawful killing of another with malice aforethought
Malice aforethought exists if there are no attendant circumstances to excuse or justify the killing and it was committed with
1) The intent to kill
2) The intent to inflict great bodily injury
3) Reckless indifference to an unjustifiably high risk to human life, or
4) The intent to commit a felony
Intentional use of a deadly weapon creates an inference of intent to kill
In VA, first degree murder is murder (other than aggravated murder) by:
1) Poison
2) Lying in wait
3) Imprisonment
4) Starvation or
5) any willful, deliberate, and premeditated killing that does not fall within aggravated murder
True
[Here, the facts indicate that Jerry killed Mickey with malice aforethought, and there were no excuses or justifications for the killing
Malice aforethought existed bc Jerry intended to kill Mickey
Jerry obtained a gun and shot and killed Mickey
Jerry's intentional use of the gun, a deadly weapon creates an inference of his intent to kill]
[The facts indicate Jerry created a plan to "get rid" of Mickey - Jerry and Phil planned to lure Mickey into the woods and shoot him to death. Jerry and Phil then obtained a gun from Bob. In furtherance of their plan, Jerry and Phil "induced Mickey to accompany them to the woods" under a false pretext, Jerry and Mickey "walked about one hundred yards into the woods," and "Jerry shot Mickey in the back of the head and killed him." These facts establish that Jerry mad the decision to kill Mickey in a cool and dispassionate manner, not in the heat of the moment or in response to some provocation.
Additionally, Jerry reflected on the idea of killing Mickey on several instances.
Thus, Jerry can be guilty of first-degree murder
As Jerry possessed the requisite criminal intent and he committed the act of firing the gun that caused MIckey's death, Jerry is guilty of first-degree murder as a principal in the first degree]
217
T/F Murder is the unlawful killing of another with malice aforethought
Malice aforethought exists if there are no attendant circumstances to excuse or justify the killing and it was committed with
1) The intent to kill
2) The intent to inflict great bodily injury
3) Reckless indifference to an unjustifiably high risk to human life, or
4) The intent to commit a felony
Intentional use of a deadly weapon creates an inference of intent to kill
True
218
T/F In VA, first degree murder is murder (other than aggravated murder) by:
1) Poison
2) Lying in wait
3) Imprisonment
4) Starvation or
5) any willful, deliberate, and premeditated killing that does not fall within aggravated murder
True
219
P1 =
Criminal actor who, with the requisite criminal intent, commits the act or omission that causes the criminal result
