Pre Trial Procedures Flashcards
(29 cards)
What is a felony indictment
A indictment is a formal charge prepared by the CA and approved by the vote of a grand jury as a “true bill”
Statutory right to indictment
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
A Person arrested on a Felony Charge has a
Statutory right to a preliminary hearing before the GDC
A preliminary hearing does what ?
Determines probable cause
If probable cause is found at a preliminary hearing what happens ?
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
If probable cause is not found at a preliminary hearing, what happens ?
The case is dismissed
What is a Direct Indictment ?
The Commonwealth’s attorney brings the case directly to a grand jury and obtains an indictment before arresting the D
A defendant arrested after a Direct Indictment does not have
A statutory right to a preliminary heading
Preliminary Hearings and Grand Jury proceedings do not
constitute jeopardy for purposes of the double jeopardy clause
A trial in GDC is
jeopardy
A trial on a lesser included misdemeanor can
bar subsequent prosecution of a felony for the same offense
A Nolo Contendre Plea
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.
An Alford Plea
Is a guilty plea entered when the D asserts his factual innocence and does not admit to the facts
What are the advantages of Alford/nolo contendre pleas ?
They impact civil liability and avoid the problem of judicial estoppel
What is Judical Estoppel ?
It prevents a party from maintaining inconsistent factual positions in successive judicial proceedings
In Va, Alford and nolo contendre pleas are
admissible in civil proceedings
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 ?
Court will deny the MSJ. The D did not admit to the underlying facts
How must guilty pleas be entered ?
In open court (except for some traffic offenses)
For a guilty plea the court must make findings that
1) The plea is voluntary; and
2) The plea is knowing
If a court does not make findings that a plea is voluntary and knowing
Then the plea could be withdrawn or nullified
Before a case goes to sentencing, A D can withdraw a guilty plea by
showing that his motion to withdraw is made in good faith and he proffers evidence of a reasonable basis for contesting guilt
Within 21 days after sentencing, A d can only withdraw from a guilty plea
if “necessary to cure manifest injustice”
Plea Agreements must be
1) Reduced to writing
2) presented in open court as matter of public record (unless sealed by the court)
What are the two categories of plea agreements ?
1) Recommendations
2) Binding Agreements
