Flashcards in VA Crim Law/Crim Pro Deck (69):
VA: There is a rebuttable presumption that a juvenile over the age of ____ but less than______ of age does not possess the physical capacity to commit rape.
VA: A confession is involuntary if the police use any of the following actions and thereby overbear the accused's will to resist and bring about a confession not freely determined:
2) threats of violence
3) Use of drugs
4) Lengthy periods of being held incommincado
VA: In Virginia, a jury verdict must be_____to convict
VA: In a felony case, arraignment is not necessary when waived by the ________. In a misdemeanor case, arraignment is not necessary when waived by the ________, or when the ____________
accused; accused or his counsel; accused fails to appear
VA: What is the outermost time limit for a D to withdraw her guilty plea?
Until court loses is jurisdiction. Within 21 days of conviction
VA: What is Capital Murder and what circumstances in which you can be convicted of capital murder?
Willful, deliberate, premeditated murder:
1) killing during kidnapping
2) for hire
3) by inmate
4) during armed robbery
5) during or subsequent to a rape
6) law enforcement officer or judge
8) more than 1 person as part of same transaction
9) more than 1 person within 3 year period
10) pregnant woman
11) under 14 (if over 21)
VA: What are the types of grand juries:
1) Regular grand jury
2) special grand jury
VA: If there are subsequent confessions following an involuntary confession, there is a rebuttable presumption that these later confessions are also tainted. What is the standard of proof necessary for the state to overcome this presumption?
Clear and Convincing
VA: The D's spouse may be compelled to testify against the D only if the case involves:
1) an offense committed by one against the other or a minor child of either
2) a charge that one spouse forged the other's signature or
3) a violation of the law pertaining to criminal sexual assault
VA: In VA a D generally may use physical force to defend himself if there is a reasonable appearance that the use of force is justified. How do VA courts determine "reasonable appearance"?
The "reasonable appearance" is determined from the subjective viewpoint of the defendant at the time he acted
Is Voluntary intoxication a defense to a crime in Virginia?
Only in 1st degree murder cases.
Virginia's rules regarding criminal procedure are derived from three different sources, identify them:
1) the Virginia Constitution
2) The Virginia Code of Criminal Procedure
3) the Rules of the Supreme Court of Virginia
VA: what must an indictment or information must contain:
1) the name of the accused
2) a description of the offense charged
3) the name of the county, city or town in which the accused committed the offense
4) a recital that the accused committed the offense on or about the certain date
VA: How long may a merchant who has probable cause to believe that a person has shoplifted on the merchant's premises detain that person pending the arrival of a law enforcement officer?
VA: Sexual intercourse with a child under the age of ____ years is punished as rape.
VA: if a person is convicted of perjury, she is prohibited from doing what:
1) holding office under the VA constitution
2) serving as a juror
Bail can be revoked upon a finding that the accused or juvenile will not appear or will constitute an unreasonable danger while at liberty. What is the appropriate standard of proof
Under the Virginia code, what term is synonymous with "kidnapping"
A regular grand jury consists of not less than ________ or more than _____ persons.
What are the elements of Entrapment?
1) Design or plan of crime must originate with the law enforcement
2) D must not have been already PREDISPOSED to commit the crime.
What is felony murder in Virginia?
1) death must occur during one of the ENUMERATED felonies (arson, abduction, rape, sodomy, inanimate or animate sexual penetration, robbery or burglary)
2) death must be CAUSALLY CONNECTED to the murder, must result from the actions
Probable Cause is present when:
at the time of the arrest the officer has within his knowledge, REASONABLY TRUSTWORTHY FACTS and CIRCUMSTANCES SUFFICIENT to warrant a REASONABLY PRUDENT PERSON to believe that the person to be arrested has COMMMITTED or is COMMITTING a Crime. *measured by a TOTALITY of the CIRCUMSTANCES
Can cases where unlawful arrests were made in violation of the 4th amendment be dismissed?
NO. even if warrantless arrests violated the 4th amendment, dismissal of the charge is NOT the proper remedy. Remedy is SUPPRESION of EVIDENCE that was obtained as a result of unlawful arrest.
For an arrest to be valid is must be _________. SC has held that warrantless arrests are reasonable for a misdemeanor or a felony when, at the time of arrest, the officer has ___________to believe that the person has committed a crime.
REASONABLE; PROBABLE CAUSE
statements made in response to CUSTODIAL INTERROGATION by the police are inadmissibe unless___
The D was first informed of his miranda rights and VOLUNTARILY AND INTELLIGENTLY waived those rights
A person is considered to be in custody if ______
the person's freedom of action is denied in a significant way
INterrogation includes not only direct questioning, but als any STATEMENT or CONDUCT_________
likely to illicit an incriminating response
What is the procedure for trying a juvenile for a crime as an adult?
In VA, the JDRCT, has jdx over matters of juveniles under 18 accused of commiting delinquent acts that would be crimes if committed by adults.
*JDRCT judge through a preliminary hearing will determine whether the juveniule’s case should be transferred to a CC to be tried as an adult.
*prosecutor must elect whether to ahve JDRCT determine 1) whether there is PC and Juve is at least 14 OR 2) whether accused should remain for disposition within juve ourt or be transferred to the adult court
* Transfer is discretionary
* Once transferred to CC, juvenile is tried and charged as an adult and JDRCT loses all jdx.
D is permitted to introduce evidence that a witness is_________or ______________, as it tends to show that witness has a motive to lie
has an interest in the outcome of the case
Is a request to consult with family, friends or others an adequate substitute for request to consult with an attorney?
NO. but presence, or lack of presence of aparent, may be a factor in whether the juvenile waived miranda rights
The intent element of a crime can be imputed to a D acting ________. Therefore a D who was present but didn't actually pull the trigger, would be considered a _______________liable for the same crimes even if didn’t pull the trigger.
Principle in the 2nd Degree
What elements do you need to prove malicious wounding?
1) intent to MAIM, DISFIGURE OR KILL
2) done with MALICE
3) MEANS of causing injury
What is perjury?
WILLFUL FALSE SWEARING, while under a LAWFULLY ADMINISTERED OATH, regarding a MATERIAL MATTER or thing
What is subornation of perjury?
INDUCING of another to give FALSE MATERIAL TESTIMONY.
to convict must show D either PROCURED, INDUCED, COUNSELED, or ADVISED Link to give false testimony
To convict a D of perjury, the Commonwealth must prove:
1) D gave sworn testimony on 2 separate occasions
2) the testimony on one occasion contradicted the testimony on the other
3) the acts were done with the intent to testify falsely
What element of proof distinguishes murder from voluntary manslaughter
What is PRESENTMENT?
WRITTEN ACCUSATION of a crime prepared and returned by a GRAND JURY from it own knowledge or observation, without any appropriate bill laid before them.
What is the Wigmore Rule for confessions?
Commonwealth has the burden of proving whether or not a confession was voluntary by a preponderance of the evidence. To be decided by Jury.
What is an accessory before the fact?
Someone who ordered, counseled or encouraged. Does not need to be present. IN VA, liable for the crime committed, means of harm does not matter.
In criminal cases, when may a spouse testify against other spouse?
The privilege belongs to testifying spouse; a spouse does not have to consent to the other spouse testifying.
In Virginia the Commonwealth's attorney is permitted to introduce the D's prior criminal history through___________when______________
attested copies of the final orders of convictions
the trial has reached the sentencing phase
An INDICTMENT is a written accusation of crime, prepared by ____________and returned "a______" upon the oath or affirmation of a legally impaneled regular ___________
Attorney of Commonwealth
What duties is a magistrate authorized to perform?
1) Issues arrest and search warrants
2) commit arrested persons to jail
3) Admit arrested persons to bail
4) conduct perliminary hearings
What is Double Jeopardy?
How does it attach?
When is it waived?
an individual may not be retried for the same offense once jeopardy has attached.
Attaches at the empaneling and swearing in of a jury
Must be raised by a motion prior to trial, otherwise waived (unless good cause can be shown)
Double Jeopardy will only bar crimes that are considered the "Same offense". When are offenses not the same?
When each crime requires proof of an additional element that the other crime does not require.
What is the standard for sufficiency of evidence?
Through the provisions of the due process clause of the 14th amendment, prosecution is required to prove each element of the crime charged BEYOND A REASONABLE DOUBT
What are the two requirements for discovery in Virginia?
1) must be relevant to the case
2) must be known by the Commonwealth's Attorney to be within the possession, control or custody of the Commonwealth.
for 4th amendment questions start like this:
For an individual to OBJECT to SEARCH OR SEIZURE under the 4th amend, he must have STANDING, his OWN REASONABLE EXPECTATION OF PRIVACY must have been violated. Whether the individual has a REP is generally decided on a case by case basis by the TOTALITY of the CIRCUMSTANCES, considering factors: ownership of the place searched, location of items seized.
What is an Alford Plea?
When a D ACKNOWLEDGES that there is SUFFICIENT EVIDENCE for a CONVICTION of the crime, but does NOT ADMIT FACTUAL GUILT.
The court may not admit evidence of a D's refusal to take a breathalyzer test unless:
the defendant raises the absence of a chemical test in defense of the charges.
In a criminal trial, if the D feels that the trial judge incorrectly sustained an objection to a rightful line of questioning, how does D preserve his appeal?
D attorney should:
1) OBJECT to the ruling at the time it occurs, AND
2) MAKE A PROFFER of what evidence would have been if it had been allowed.
3) appellate court must be able to ascertain whether the trial court's error would have made a difference in the outcome of the case.
What is a PRESENTENCE report and when is it allowable?
report of the history of the accused and all relevant facts to determine harshness of sentence.
Must be allowed in felony cases, as long as it is requested before the court imposes the sentence.
Failure to comply is reversible error.
When is a separate trial allowed for persons charged with participating in contemporaneous acts?
ONLY if joint trial would cause ACTUAL PREJUDICE to a Defendant. Actual Prejudice results only when there is SERIOUS RISK that a joint trial would COMPROMISE A SPECIFIC TRIAL RIGHT of a D, or PREVENT THE JURY FROM MAKING A RELIABLE JUDGMENT.
A juvenile 14 years old or older CAN be transferred from the JDRC if the crime committed_____________
would be a felony if committed by an adult.
A juve convicted in circuit court will be sentence by the court without interference by the jury UNLESS__________
the juvenile has been previously convicted and sentenced as an adult.
What is principle in the second degree in Virginia?
1) commits overt act, INCITING
Once a sheriff discovers facts that a FELONY has occurred what steps should he take to charge the criminals of an offense?
1) Make an IMMEDIATE ARREST - assuming he has PC - and brought to magistrate for preliminary hearing
2) Go before a compentant judicial officer (magistrate) to swear out a warrant.
3) ask the COMMONWEALTHS ATTORNEY to PREPARE A BILL OF INDICTMENT for PRESENTMENT to the regular grand jury. - if sufficient probable cause, the Grand Jury will return a TRUE BILL
Once a sheriff discovers facts that a MISDEMEANOR has occurred what steps should he take to charge the criminals of an offense?
1) obtain an arrest warrant, UNLESS the crime was committed in the officers presence.
2)Arrestee must be taken to the appropriate judicial officer
3) upon presentment the judicial officer has 2 options conduct a BAIL HEARING or proceed DIRECTLY TO TRIAL
*may proceed directly to trial ONLY if 1) judicial officer has jdx to try offense with which D is charged 2) the offense is a MISDEMEANOR and 3) the D CONSENTS and prosecution does not object
What are the VA Crim Law classes of Felonies?
Class 1: - Death or life in prson (cant be convicted of death if under 18 at time of offense or mentally retarded)
Class 2: 20 years to life
Class 3: 5 -20
Class 4: 2 -10
Class 5: 1-10, OR up to 12 months, and/OR up to $2500 fine
Class 6: 1-5, or up to 12 months and/OR up to $2500 fine.
*class 1-4 also subject up to 100k fine.
What are the VA Crim Law classes of Misdemeanors?
Class 1 - up to 12 mos in jail AND/OR up to $2500 fine.
Class 2 - up to 6 mos in jail AND/OR up to 1000 fine.
Class 3 - up to a $500 fine
Class 4 - up to $250 fine
P2 and ABF may be _____________________in all respects as if a P1.
idicted, tried, convicted and punished in all respects as if a P1.
ABF may be convicted based on________________whereas _____________is sufficient for P2 or ABF.
totality of the circumstances;
What is the standard in VA for proving insanity?
TO THE SATISFACTION OF THE JURY
What is the year and a day rule?
In VA, a prosecution for murder or manslaughter may be brought regardless of the amount of time that has passed between the act or omission that caused the death and the victims death
A merchant may detain a suspected shoplifter for how long?
up to 1 hour.
What is the crime of "TAKING INDECENT LIBERTIES WITH A CHILD"?
almost any sexual activity with a child younger than 15 by a person older than 18.
What are the VA crimes involving admistration of justice?
2. Subornation of perjury
4. Obstruction of Justice
5. Falsely reporting a crime
6. Concealing or Compounding an offense
7. Resisting Arrest
What are juror requirements in VA?
2) residents of the state for at least 1 year and for 6 months of the county or corporation in which the court is to be held.