This essential resource is intended as a guide for attorneys and as a source of information for judges who are involved with capital cases in Virginia, which is a form of litigation to which many issues are unique. It includes several tables of relevant cases arranged by different groupings: by defendant’s surname followed by full reported citations, by degree of aggravation and mitigation, by aggravator, and under the section of the Virginia Code offended. There is also a section discussing ineffective assistance of counsel issues. If you handle criminal cases in Virginia where capital punishment is even a possibility, you should have this book.

The fourth edition of this book was published in 2009 and has been updated with a 2010 supplement. The book is available in both print and CD-ROM formats and is also available for immediate download. Please see the information on electronic books before selecting the CD-ROM or download option.

Preface
Effect of Rule 1:16


CHAPTER 1: INTRODUCTION

1.1 PURPOSE

1.2 CONCEPT OF CRUEL AND UNUSUAL PUNISHMENT

1.3 PROCEDURAL ASPECTS OF THE EIGHTH AMENDMENT

1.4 SUBSTANTIVE ASPECTS OF THE EIGHTH AMENDMENT

1.5 EFFECT OF FEDERAL REVIEW ON TRIAL

CHAPTER 2: THE CAPITAL MURDER STATUTE

2.1 INTRODUCTION

2.2 WILLFUL, DELIBERATE, AND PREMEDITATED
      2.201 Premeditation
      2.202 Effect of Voluntary Intoxication
      2.203 Effect of Diminished Capacity

2.3 "IN THE COMMISSION OF"

2.4 KILLING OF "ANY PERSON"

2.5 "TRIGGERMAN" RULE

2.6 SPECIFIC SUBSECTIONS OF SECTION 18.2-31
      2.601 Abduction: Section 18.2-31(1)
      2.602 Murder for Hire: Section 18.2-31(2)
      2.603 Murder by Prisoner: Section 18.2-31(3)
      2.604 Robbery: Section 18.2-31(4)
      2.605 Rape, Forcible Sodomy, Object Sexual Penetration: Section 18.2-31(5)
      2.606 Murder of Law-Enforcement Officer: Section 18.2- 31(6)
      2.607 Simultaneous Murders: Section 18.2-31(7)
      2.608 Multiple Murders Within Three-Year Period: Section 18.2-31(8)
      2.609 Drug-Related Murders: Section 18.2-31(9)
      2.610 Murder Pursuant to Continuing Criminal Enterprise: Section 18.2-31(10)
      2.611 Murder of Pregnant Woman: Section 18.2-31(11)
      2.612 Murder of a Person Under the Age of 14 by a Person Age 21 or Older: Section 18.2-31(12)
      2.613 Murder of a Person During the Commission of an Act of Terrorism: Section 18.2-31(13)

2.7 ADDING CAPITAL MURDER COUNTS TO THE INDICTMENT

CHAPTER 3: PRETRIAL PROCEDURES

3.1 INTRODUCTION

3.2 BAIL

3.3 PRELIMINARY HEARING

3.4 JOINDER AND SEVERANCE
      3.401 Joinder of Defendants
      3.402 Joinder of Offenses

3.5 PRETRIAL MOTIONS
      3.501 Motions That May Be Raised Pretrial
      3.502 Issues That Must Be Raised Pretrial

3.6 BILL OF PARTICULARS

3.7 MOTIONS IN LIMINE

3.8 MOTIONS TO APPOINT EXPERTS AND INVESTIGATORS

3.9 DISCOVERY
      3.901 Discovery Under Rule 3A:11
      3.902 Constitutional Discovery

3.10 ACCESS TO FORENSIC EVIDENCE

3.11 RECIPROCAL DISCOVERY BY COMMONWEALTH

3.12 COMPETENCE TO STAND TRIAL

3.13 INSANITY DEFENSE
      3.1301 Preliminary Evaluation
      3.1302 Notice
      3.1303 Evaluation by Commonwealth
      3.1304 Discovery by Commonwealth
      3.1305 Use of Sanity Evaluations at Guilt or Innocence Trial
      3.1306 Use of Mental Evaluations at Penalty Phase

APPENDIX 3-1: BAIL PAPERS

APPENDIX 3-2: MOTION TO DECLARE THE VIRGINIA CAPITAL MURDER AND DEATH PENALTY STATUTES UNCONSTITUTIONAL

APPENDIX 3-3: MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTIONS TO DECLARE THE VIRGINIA CAPITAL MURDER AND DEATH PENALTY STATUTES UNCONSTITUTIONAL AND TO PROHIBIT THE IMPOSITION OF THE DEATH PENALTY

APPENDIX 3-4: [Omitted]

APPENDIX 3-5: [Omitted]

APPENDIX 3-6: MOTION FOR BILL OF PARTICULARS

APPENDIX 3-7: MEMORANDUM IN SUPPORT OF MOTION FOR A BILL OF PARTICULARS

APPENDIX 3-8: MOTION TO ENJOIN LAW ENFORCEMENT OFFICERS FROM WEARING UNIFORMS IN COURTROOM WHILE SITTING AS SPECTATORS, OR GRANT OTHER APPROPRIATE RELIEF

APPENDIX 3-9: MEMORANDUM OF LAW IN SUPPORT OF MOTION TO ENJOIN LAW ENFORCEMENT OFFICERS FROM WEARING UNIFORMS IN THE COURTROOM AS SPECTATORS

APPENDIX 3-10: MOTION FOR APPOINTMENT OF FORENSIC
EXPERT

APPENDIX 3-11: MEMORANDUM IN SUPPORT OF MOTION FOR APPOINTMENT OF FORENSIC EXPERT

APPENDIX 3-12: MOTION FOR APPOINTMENT OF EXPERT INVESTIGATOR

APPENDIX 3-13: MEMORANDUM IN SUPPORT OF MOTION FOR APPOINTMENT OF AN EXPERT INVESTIGATOR

APPENDIX 3-13a: MOTION FOR APPOINTMENT OF AN EXPERT ON CONDITIONS OF INCARCERATION

APPENDIX 3-13b: MEMORANDUM IN SUPPPORT OF MOTION FOR APPOINTMENT OF AN EXPERT ON CONDITIONS OF INCARCERATION

APPENDIX 3-14: MEMORANDUM OF LAW REGARDING DEFENDANT'S RIGHT TO MAKE EX PARTE APPLICATIONS

APPENDIX 3-15: MOTION FOR DISCOVERY AND INSPECTION

APPENDIX 3-16: MEMORANDUM IN SUPPORT OF DISCOVERY MOTION

CHAPTER 4: TRIAL

4.1 RIGHT TO FAIR TRIAL

4.2 RIGHT TO PUBLIC TRIAL
      4.201 Defendant's Presence During Trial

4.3 JURY SELECTION
      4.301 Selection of the Array
      4.302 Statutory Challenges
      4.303 Constitutional Challenges

4.4 SELECTION OF THE PETIT JURY
      4.401 Voir Dire
      4.402 Challenges for Cause
      4.403 Peremptory Challenges

4.5 CHANGE OF VENUE

4.6 ENTERING A GUILTY PLEA

APPENDIX 4-1: MOTION FOR CHANGE OF VENUE

APPENDIX 4-2: MEMORANDUM IN SUPPORT OF MOTION FOR CHANGE OF VENUE

APPENDIX 4-3: MOTION FOR INDIVIDUAL AND SEQUESTERED VOIR DIRE

APPENDIX 4-4: MEMORANDUM IN SUPPORT OF MOTION FOR INDIVIDUAL AND SEQUESTERED VOIR DIRE

APPENDIX 4-5: MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES

APPENDIX 4-6: MEMORANDUM IN SUPPORT OF MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES

APPENDIX 4-7: MOTION TO DISMISS JURY AND RE-IMPANEL VENIRE

CHAPTER 5: THE PENALTY TRIAL

5.1 INTRODUCTION
      5.101 Eligibility Phase
      5.102 Selection Phase

5.2 AGGRAVATING FACTORS
      5.201 Vileness
      5.202 Future Dangerousness
      5.203 Victim Impact Evidence
      5.204 Victims' Statements

5.3 MITIGATION
      5.301 Statutory Factors
      5.302 Nonstatutory Factors

5.4 EXCLUSION OF MITIGATING EVIDENCE
      5.401 Irrelevant Evidence
      5.402 Mental Health Evidence

5.5 INSTRUCTIONS CONCERNING PAROLE ELIGIBILITY

5.6 JURY INSTRUCTIONS AND VERDICT FORMS

5.7 CLOSING ARGUMENT
      5.701 Appeals to Emotions
      5.702 "Send a Message" Arguments
      5.703 Information on the Appellate Process
      5.704 Religious Arguments

5.8 POLLING THE JURY
      5.801 Defendant's Presence During Jury Deliberations

5.8.1 IMPEACHING THE JURY'S VERDICT

5.9 POST-SENTENCE REPORTS

5.10 RESENTENCING HEARINGS

APPENDIX 5-1: SAMPLE JURY VERDICT FORMS

CHAPTER 6: CONCLUSION

TABLE I: CASE HISTORIES

TABLE II: AGGRAVATION AND MITIGATION EVIDENCE

TABLE III: CASES BY AGGRAVATOR

TABLE IV: STATUTORY SECTIONS USED

TABLE V: INEFFECTIVE ASSISTANCE OF COUNSEL ISSUES

INDEX