Criminal Law - Guilty Pleas & Plea Bargaining and So On

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What must a judge establish for a guilty plea to be valid?

That it is VOLUNTARY AND INTELLIGENT

How does a judge make the showing that a guilty plea is voluntary and intelligent?

Judge must address in open court and on the record:
a. the nature of the charges, including the required elements of the charged offense; AND
b. the consequences of the plea (e.g., the waiver of right to plead not guilty; waiver of right to trial)

When may a D w/draw a guilty plea?

ONLY if:
a. plea is INVOLUNTARY, due to defect in plea-taking colloquy (difficult standard to meet);
b. there is a jurisdictional defect (i.e., the wrong court took the plea);
c. D prevails on an effective claim of ineffective assistance of counsel; or
d. **the prosecutor fails to fulfill part of the bargain

What is a plea of nolo contendere ("no contest")? Is D estopped from denying liability in a civil case?

D agrees the court may consider him guilty for purpose of imposing judgment/sentence, but not a declaration of innocence.
In majority of jurisdictions, D is not estopped in a civil case from denying liability.
**In VA, it is admissible in civil litigation against D

What is an Alford plea? What is the possible benefit to D in taking this plea?

D concedes only that the prosecution has sufficient evidence to prove the case.
Could possibly help D in civil case, b/c not admitting guilt

*In VA, when may a D w/draw a plea of guilty or no contest?

1. Only before sentence imposed or imposition of sentence is suspended; OR
2. W/in 21 days after entry of a final order if court sets aside the judgment in order to correct a manifest injustice

The 8th Amendment prohibits cruel and unusual punishment, which disallows what?

Criminal penalties that are grossly disproportionate to the seriousness of the offense committed

Would a death penalty statute violate the 8th Amendment if it created an automatic category for the imposition of the death penalty?

YES

In deciding whether to impose the death penalty, what must jurors be allowed to consider?

All potentially mitigating evidence

Against what 3 categories of Ds does the 8th Amendment prohibit imposition of the death penalty?

1. Ds w/mental retardation
2. Ds who are PRESENTLY insane
3. Ds who were under 18 at the time the RELEVANT OFFENSE OCCURRED (not their present age)

When does "jeopardy" attach in a jury trial?

When jury is sworn

When does "jeopardy" attach in a bench trial?

When 1st witness is sworn

When does "jeopardy" attach w/a guilty plea?

When the court accepts the D's plea unconditionally

Does the double jeopardy clause apply to civil proceedings?

NO

**When are two offenses NOT considered the "same offense" for purposes of the double jeopardy clause?

If each offense contains an element that the other does not

Ex. of two statutes: Are vehicular manslaughter and hit-and-run the same offense for double jeopardy purposes?

NO, b/c each offense has an element the other does not, D can be convicted of both and double jeopardy does not apply.
Vehicular manslaughter requires proof of death, which hit-and-run does not; and hit-and-run requires proof that D unlawfully left the scene, which vehicular manslaughter does not

**Are two offenses the "same offense" if only one offense has an element not contained in the other?

NO
Ex. Auto Theft and Joyriding
Both require 1. taking and operating an auto, 2. w/o owner's consent - but then, only auto theft requires 3. w/the intent to permanently deprive the owner of possession, therefore, joyriding is a "lesser offense" of auto theft

Does prosecution for the greater offense preclude/bar later prosecution for the lesser-included offense?

Yes, and vice-versa

Double jeopardy bars retrial for the same offense by the same sovereign ONLY. Who are the same sovereign for purposes of the double jeopardy clause?

a. State and federal gov't: not same sovereigns
b. Different states: not same sovereigns
c. States & municipalities w/in them: same sovereigns

What are the four exceptions to the double jeopardy rule that permit retrial?

1. Hung jury
2. Mistrial for manifest necessity
3. A successful appeal
4. A breach of the plea agreement by D

What is an example of a mistrial for manifest necessity?

Retrial was permitted where a defect was found in the indictment during trial that could not be cured by amending it

Is a successful appeal an exception to double jeopardy if the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial?

NO

VA Double Jeopardy [provides more protection]
Does prosecution for the substantive offense bar later prosecution for the related conspiracy? Exception?

Yes
Exception: if both charges are brought in the same proceeding - ok

Does VA waive the dual sovereignty exception? What does this mean?

Yes - prosecution for a federal crime bars later state prosecution under the equivalent state statute.
The federal action must start before the state proceeding

Who may assert the 5th Amendment privilege against self-incrimination?

Anyone - defendants, witnesses, parties to civil proceedings

At what proceedings can the 5th Amendment privilege be asserted?

ANY proceeding in which an individual testifies under oath
Ex. trial, administrative hearing, Congressional hearing

**When must the 5th Amendment privilege be asserted?

At the FIRST opportunity or it is FOREVER waived

The 5th Amendment privilege is a "testimonial" privilege, which means

that it protects us from compelled testimony ONLY; it does not apply to the state's use of our bodies

On what does the 5th Amendment privilege disallow negative prosecutorial comment?

A D's:
1. decision not to testify at his trial; or
2. the invocation of his right to silence

What are the 3 ways to eliminate the 5th Amendment privilege?

1. "Use and derivative use" immunity
2. D taking the stand
3. Statute of Limitations

How does "use and derivative use" immunity eliminate the privilege? Caveat?

Prosecutorial grant of "use and derivative use" immunity means the prosecution cannot use your testimony or anything derived from it to convict you.
Caveat: An individual can be convicted based on evidence obtained PRIOR to the grant of immunity

How does D taking the stand eliminate the privilege?

By taking the stand, D waives ability to "take the fifth" as to anything properly w/in scope of cross-examination

How does statute of limitations eliminate the privilege? Why?

The privilege is unavailable if the statute of limitations has run on the underlying crime since, in this circumstance, a witness's testimony could NOT expose him/her to criminal prosecution

What is the constitutional standard to determine whether a D's 6th Amendment right to a speedy trial has been violated?

Evaluation of the totality of the circumstances

Does the federal constitution define any specific time for a speedy trial?

NO

What are factors used to evaluate whether or not D's right to speedy trial has been violated?

a. Length of Delay (no fixed term/see state statutes)
b. Reason for Delay (innocent or intentional by gov't)
c. Whether D asserted his right; and
d. Prejudice to D

What is the remedy to a violation of D's right to speedy trial?

Dismissal of the case WITH PREJUDICE

When does the right to a speedy trial attach?

Not until the D has been arrested and formally charged

VA Speedy Trial

a. Time Limitations
b. Commencement of Trial
c. Tolling Events
d. Waiver

In VA, when will an accused be permanently discharged from prosecution if the accused committed a felony and trial is not commenced (time periods)?

1. D is in custody: 5 months from preliminary hearing
2. D not in custody: 9 months from preliminary hearing

In VA, when is a trial deemed commenced for speedy trial purposes?

At the point when double jeopardy attaches or when a plea of guilty or nolo contendere is tendered by D

In VA, what are events that toll the commencement of speedy trial?

1. Insanity
2. Escape
3. Witness issues
4. Separate trials
5. Hung jury
6. Natural disaster
7. Continuance on motion by accused
8. Appeals

In VA, when does an accused waive his right to a speedy trial?

By:
1. Failing to invoke until after final judgment; or
2. Failing to oppose a motion for continuance

Due Process entitles D to an impartial trier of fact - T or F?

True

What are some things judges may do to solve publicity issues at a trial?

1. Delay the trial
2. Sequester the jury
3. Change of venue
4. Close

When may a judge close a trial?

When there is a COMPELLING INTEREST and NO LESS RESTRICTIVE ALTERNATIVE

Are cameras in court per se unconstitutional?

No - ask whether they will adversely affect the trial

VA - Additional Procedural Issues

1. Court System in the Commonwealth (4 levels)
2. Statute of Limitations
3. Preliminary Hearings
4. Forms of Indictment
5. Arraignment
6. Discovery
7. Habeas Corpus
8. Waiver

In VA, what is the jurisdiction of District Courts? Are there juries? Are they courts of record?

Original jurisdiction over misdemeanors; preliminary hearings for felonies
No juries
No record

In VA, what is the jurisdiction of Circuit Courts? Are there juries?

Original jurisdiction over felonies; appeals from District Court (de novo)
Trials can be jury or bench

In VA, is there a right of appeal to the Courts of Appeals?

NO
Final appeal for misdemeanor convictions if no jail

In VA, what cases does the Supreme Court review?

1. Review if substantial constitutional Q or issue of significant precedential value
2. Death penalty cases are automatically appealed to S. Ct.

In VA, what is the statute of limitations for a felony? For a misdemeanor? For continuing offenses? Exceptions?

Felony: generally no limitation
Misdemeanor: 1 year
Continuing offenses (e.g., desertion or nonsupport): generally no limitation
Few limited exceptions (e.g., petit larceny: 5 years)

In VA, where are preliminary hearings held/

District Court

In VA, does an accused have a right to a preliminary hearing? Exception?

Accused charged w/felony, UNLESS an indictment is returned prior to preliminary hearing

When is the right to a preliminary hearing waived?

Waived if not raised before trial

What options does a judge at a preliminary hearing have?

1. Determine no probable cause - discharge accused
2. Determine probable cause for:
-Charging accused w/offense judge has jurisdiction to try (misdemeanor): proceed w/trial
-Charging accused w/offense judge does not have jurisdiction to try (felony): certify the case to the Circuit Court and commit accused to jail or admit him to bail

In VA, what is an indictment?

A written accusation of a crime prepared by the attorney for the Commonwealth and returned a "true bill" upon oath or affirmation of a legally impaneled grand jury (jury foreman signs indictment)

In VA, what is a presentment?

A written accusation of a crime prepared and returned by a grand jury from its own knowledge or observation w/o any appropriate bill laid before them

In VA, what is an information?

A written accusation of a crime or a complaint for forfeiture of property/money, prepared and presented by a competent public official upon his oath of office

In VA, do irregularities in time or manner vitiate the indictment? Why? Exceptions?

Generally no, b/c they are considered harmless errors
Exceptions:
-Failure to state an offense
-Systematic exclusion from grand jury on basis of race

In VA, is an indictment necessary?

D may not be tried for a felony unless an indictment or presentment has been found or made by the proper grand jury, UNLESS D waives this right

In VA, is an arraignment necessary for a felony charge?

Not necessary if waived by the accused

In VA, is an arraignment necessary for a misdemeanor?

Not necessary if:
-waived by accused or his counsel
-D fails to appear

In VA, when can a trial court order discovery of statements or confessions of the D?

a. Written & recorded statements of the accused in connection w/a particular case; or
b. Oral statements ONLY IF made to a police officer

In VA, what are the requirements for discoverable items?

Must be relevant and must be known to be w/in the possession, custody, or control of the Commonwealth

VA: What is reciprocal discovery? When does the right attach?

If discovery is granted to the defense, the prosecution may motion the court for reciprocal discovery.
The right to reciprocal discovery attaches ONLY AFTER the defense has been permitted some discovery of the state's case

VA: What is habeas corpus?

A civil trial in which D is acting as the civil plaintiff and is suing the government for a constitutional violation

VA: What are the two possible grounds for a habeas corpus action?

a. The basis of holding the D is unconstitutional (i.e., the conviction was unconstitutional); or
b. The manner of holding the D is improper or unconstitutional (i.e., hazardous to D's health)

VA: Habeas corpus venue?

Case must be filed where D originally sentenced; EXCEPT in death penalty cases, which go directly to VA S. Ct.

VA: Non-waivable rights

a. appearance
b. failure to state an offense

VA: Rights waivable by affirmative action on part of D

a. Counsel,
b. Miranda,
c. Jury Trial

VA: How are other rights waived?

Failure to assert

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