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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?
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?
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 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?
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?
VA Double Jeopardy [provides more protection]
Does prosecution for the substantive offense bar later prosecution for the related conspiracy? Exception?
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?
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
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
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?
3. Witness issues
4. Separate trials
5. Hung jury
6. Natural disaster
7. Continuance on motion by accused
In VA, when does an accused waive his right to a speedy trial?
1. Failing to invoke until after final judgment; or
2. Failing to oppose a motion for continuance
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
When may a judge close a trial?
When there is a COMPELLING INTEREST and NO LESS RESTRICTIVE ALTERNATIVE
VA - Additional Procedural Issues
1. Court System in the Commonwealth (4 levels)
2. Statute of Limitations
3. Preliminary Hearings
4. Forms of Indictment
7. Habeas Corpus
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
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?
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, does an accused have a right to a preliminary hearing? Exception?
Accused charged w/felony, UNLESS an indictment is returned prior to preliminary hearing
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
-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 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.
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