Defending Criminal Cases in Virginia

Defending Criminal Cases in Virginia
Publication Date: 2018
Electronic Forms: 71
Available Formats: Print (943 pages, softcover, 1 volume)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 877

Information

Content Highlights:
  • The Criminal Process
  • Right to Counsel
  • The Law of Arrest
  • Securing Pretrial Release
  • Search and Seizure
  • The Privilege Against Self-Incrimination
  • Confessions
  • Eyewitness Identification Procedures
  • Pretrial Proceedings
  • Constitutional and Statutory Doctrine Affecting The Trial
  • The Trial
  • Sentencing
  • Appeals

"[This book provides] the most comprehensive explanation of Virginia Criminal Procedure currently available. Defending Criminal Cases in Virginia not only provides detailed explanations of procedures, but has drawn motion samples from some of the best criminal defense attorneys around the state."
- Corinne J. Magee, co-editor

"No other practice manual has the focus, emphasis and commitment to anticipating the needs of criminal defense attorneys who sometimes require fast answers, current information and useful recommendations."
- David L. Heilberg, co-editor

The only Virginia criminal practice text written by and for practicing criminal defense attorneys, Defending Criminal Cases in Virginia is a hands-on, start-to-finish tool for beginning and experienced criminal defense lawyers. It provides coverage of the entire process of representing criminal defendants from arrest through sentencing and appeal. Significant portions of the book are devoted to tactics and techniques and the practical advice is complemented by a large number of editable electronic forms.

Current through December 2017, the new edition addresses the most recent statutory changes and relevant case law, including Collins v. Virginia, a Fourth Amendment case now pending before the U.S. Supreme Court, and other important court decisions that generally broaden the police's power to conduct warrantless searches in Virginia.


You may also be interested in:


Virginia Criminal Practice Forms

Defense of Serious Traffic Cases in Virginia

Trial of Capital Murder Cases in Virginia

A Guide to the Rules of Evidence in Virginia

Objections: Interrogatories, Depositions, and Trial
 

 

Table of Contents

CHAPTER LIST

1. Introduction to the Criminal Process

2. Right to Counsel

3. The Law of Arrest

4. Securing Pretrial Release

5. Search and Seizure

6. The Privilege Against Self-Incrimination

7. Confessions

8. Eyewitness Identification Procedures

9. Pretrial Proceedings

10. Constitutional and Statutory Doctrine Affecting the Trial

11. The Trial

12. Sentencing

13. Appeals


CHAPTER 1: INTRODUCTION TO THE CRIMINAL PROCESS

1.1 THE CONCEPTS AND OBJECTIVES OF THE CRIMINAL
PROCESS
        1.101 Inquisitorial and Adversarial Legal Systems
        1.102 Procedural Due Process

1.2 SOURCES OF THE LAW
        1.201 Constitution, Laws, and Treaties of the United States
        1.202 Supreme Court Cases as Precedent
        1.203 Virginia Constitution
        1.204 Virginia Crimes and Offenses Generally
        1.205 Virginia Code of Criminal Procedure
        1.206 Rules of the Supreme Court of Virginia
    
1.3 TERMINOLOGY AND CLASSES OF OFFENSES
        1.301 Definitions
        1.302 Classification of Crimes
        1.303 Unclassified Crimes
    
1.4 THE CRIMINAL JUSTICE SYSTEM IN VIRGINIA
        1.401 In General
        1.402 The Courts
        1.403 Clerks of Court
        1.404 Commonwealth’s Attorneys
        1.405 Magistrates

1.5 SEQUENCE OF A TYPICAL CRIMINAL CASE
        1.501 Arrest and Arraignment
        1.502 Preliminary Hearing or Trial on Misdemeanor
        1.503 Grand Jury Indictment and Arraignment in Circuit
        Court
        1.504 Disposition in Circuit Court
    
1.6 GENERAL DUTIES OF DEFENSE COUNSEL
        1.601 Initial Action
        1.602 Fee Arrangements
        1.603 Documenting Adequacy of Representation

1.7 PROFESSIONAL RESPONSIBILITY AND ETHICAL
CONSIDERATIONS
        1.701 In General
        1.702 Lawyer’s Duty to Provide Legal Service
        1.703 Competency to Handle Case
        1.704 Representing the Interests of the Client
        1.705 Preserving Client Confidences and Secrets
        1.706 Fees
        1.707 Termination of Representation
    
APPENDIX 1-1: INITIAL CLIENT INTERVIEW CHECKLIST

APPENDIX 1-2: FEE AGREEMENT LETTER

APPENDIX 1-3: MEMORANDUM OF ADVICE TO CLIENT

APPENDIX 1-4: RELEASE OF INFORMATION FORM

APPENDIX 1-5: CODEFENDANTS’ CONFLICT WAIVER

APPENDIX 1-6: COOPERATIVE DEFENSE AGREEMENT

CHAPTER 2: RIGHT TO COUNSEL

2.1 GENERAL CONSIDERATIONS
        2.101 Scope of Right
        2.102 Determination of Indigence
    
2.2 PROCEEDINGS IN WHICH THE RIGHT TO COUNSEL
APPLIES
        2.201 In General
        2.202 Pretrial Proceedings
        2.203 Post-Trial Proceedings
        2.204 Duration of Appointment
    
2.3 WAIVER OF RIGHT TO COUNSEL; RIGHT TO PROCEED
PRO SE
        2.301 In General
        2.302 Procedure
        2.303 Implied Waiver
        2.304 Right to Proceed Pro Se

2.4 COURT-APPOINTED COUNSEL AND PUBLIC DEFENDERS
        2.401 Standards for Court-Appointed Counsel
        2.402 Public Defender System
        2.403 Compensation of Court-Appointed Counsel
    
2.5 RIGHT TO OTHER SERVICES AT STATE EXPENSE
        2.501 Investigative and Expert Services.
        2.502 Transcripts

2.6 LIABILITY FOR FEES AND COSTS

2.7 RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
        2.701 In General
        2.702 Right to Adversarial Performance
        2.703 Right to Counsel in Preparing Defense
        2.704 Right to Competent Counsel
        2.705 Substitution of Court-Appointed Counsel
        2.706 Right to Non-Appointed Counsel of Choice
    
2.8 COLLATERAL CONSEQUENCES OF UNCOUNSELED
CONVICTION

APPENDIX 2-1: DC-333: FINANCIAL STATEMENT—ELIGIBILITY
DETERMINATION FOR INDIGENT SERVICES

APPENDIX 2-2: MOTION TO WITHDRAW AS COUNSEL

APPENDIX 2-3: ORDER PERMITTING WITHDRAWAL AS
COUNSEL

APPENDIX 2-4: MOTION FOR APPOINTMENT OF EXPERTS

APPENDIX 2-5: MEMORANDUM IN SUPPORT OF MOTION FOR
APPOINTMENT OF EXPERTS

CHAPTER 3: THE LAW OF ARREST

3.1 GENERAL CONSIDERATIONS

3.2 THE ACT OF ARREST
        3.201 In General
        3.202 Constitutional Probable Cause Standard
    
3.3 WHEN WARRANT IS REQUIRED
        3.301 Constitutional Requirements
        3.302 Statutory Requirements

3.4 ARREST WITH WARRANT OR SUMMONS
        3.401 Authority to Issue Warrant or Summons
        3.402 Complaint
        3.403 Form and Content of Arrest Warrant
        3.404 Summons Instead of Warrant in Certain Cases
        3.405 Execution of Warrant or Summons

3.5 ARREST WITHOUT WARRANT
        3.501 General Statutory Authority
        3.502 Authority of Correctional Officers
        3.503 Territorial Authority
        3.504 Officer May Issue Summons in Certain Cases
        3.505 Officer Must Be in Uniform
        3.506 Pursuit and Arrest Incident to Escape or Flight from
        Custody
        3.507 Arrest Incident to Family Abuse or Violation of
        Protective Order
        3.508 Arrest of Illegal Aliens
        3.509 Arrest by Officer from Another State
        3.510 Use of Force
    
3.6 PROCEDURE AFTER ARREST
        3.601 Procedure After Arrest With Warrant
        3.602 Procedure After Arrest Without Warrant
        3.603 Delay in Bringing Accused Before Magistrate
        3.604 Extradition

3.7 CONSEQUENCES OF ILLEGAL ARREST
        3.701 In General
        3.702 Derivative Evidence (Fruit of the Poisonous Tree)
    
3.8 STOP AND FRISK
        3.801 In General
        3.802 The Standard
    
3.9 ENTRAPMENT
        3.901 In General
        3.902 The Standard

APPENDIX 3-1: MOTION TO SUPPRESS; MOTION IN LIMINE

APPENDIX 3-2: MOTION TO SUPPRESS UNLAWFUL PAT-DOWN
EVIDENCE

CHAPTER 4: SECURING PRETRIAL RELEASE

4.1 GENERAL CONSIDERATIONS
        4.101 The Constitutional Standard
        4.102 Practical Considerations
        4.103 Virginia Bail Bondsmen
    
4.2 THE STATUTORY STANDARD
        4.201 In General
        4.202 Authority to Grant Pretrial Release
        4.203 Setting Terms of Release

4.3 APPEAL AND HABEAS CORPUS

4.4 SECURING APPEARANCE OF MATERIAL WITNESS

4.5 PENALTIES FOR FAILURE TO APPEAR

4.6 RECOGNIZANCES
        4.601 Conditions
        4.602 Forfeiture
    
4.7 SATISFACTION AND DISCHARGE OF MISDEMEANOR

4.8 PEACE BOND

APPENDIX 4-1: QUESTIONNAIRE FOR BAIL INFORMATION

APPENDIX 4-2: MOTION TO SET/REDUCE BOND

APPENDIX 4-3: MOTION TO AMEND BOND

APPENDIX 4-4: APPEAL OF BOND DETERMINATION

CHAPTER 5: SEARCH AND SEIZURE

5.1 GENERAL CONSIDERATIONS
        5.101 Pervasive Themes
        5.102 The Concept of Probable Cause
        5.103 Establishing Probable Cause: Use of Hearsay
        5.104 Establishing Probable Cause: The “Staleness” Problem
        5.105 Establishing Probable Cause: Use of Dogs

5.2 SEARCHES WITH A WARRANT
        5.201 Who May Issue Warrant
        5.202 Property Subject to Search and Seizure
        5.203 The Affidavit
        5.204 Contents of Warrant
        5.205 Execution of the Warrant
        5.206 Testing the Facially Valid Warrant
    
5.3 WARRANTLESS SEARCHES
        5.301 In General
        5.302 Search Incident to Arrest
        5.303 Automobile Searches
        5.304 Miscellaneous Exceptions: Emergencies and the
        Community Caretaking Doctrine
        5.305 Waiver: Consent Searches
        5.306 The “Plain View” Doctrine
        5.307 Abandoned Property
    
5.4 ADMINISTRATIVE SEARCHES
        5.401 In General
        5.402 Probable Cause
        5.403 Warrantless Searches

5.5 FOURTH AMENDMENT STANDING
        5.501 History and Background
        5.502 Rakas v. Illinois and Its Progeny: The New Law
        of Standing
    
5.6 THE EXCLUSIONARY RULE
        5.601 History and Development
        5.602 Motions to Suppress
        5.603 Proceedings to Which the Rule Is Applicable
        5.604 Exceptions to the Exclusionary Rule
        5.605 The “Good Faith” Exception
        5.606 The Independent Source Doctrine
        5.607 The Inevitable Discovery Doctrine
        5.608 The Attenuation Doctrine
        5.609 Application to Statutory Violations
        5.610 Collateral Use of Illegally Seized Evidence
    
5.7 ELECTRONIC SURVEILLANCE AND RELATED
ACTIVITIES
        5.701 History and Background
        5.702 The Federal Electronic Surveillance Statute
        5.703 The Virginia Electronic Surveillance Statute
        5.704 Related Activities
    
5.8 INFORMERS AND UNDERCOVER AGENTS

5.9 MISCELLANEOUS SEARCH AND SEIZURE PROBLEMS
        5.901 Searches by Private Parties
        5.902 Airport Security Measures
        5.903 Searches by Public School Authorities
        5.904 Drug Testing
        5.905 Pretextual Police Motive
        5.906 Roadblocks
        5.907 Body Cavity Searches
        5.908 Searches of Probationers
        5.909 DNA Testing
    
5.10 FORFEITURE
        5.1001 In General
        5.1002 Procedure
    
APPENDIX 5-1: NOTICE AND MOTION TO SUPPRESS

APPENDIX 5-2: MOTION TO SUPPRESS—UNLAWFUL SEARCH
OF RESIDENCE

APPENDIX 5-3: MEMORANDUM IN SUPPORT OF MOTION TO
SUPPRESS EVIDENCE FROM UNLAWFUL SEARCH OF
RESIDENCE

APPENDIX 5-4: MEMORANDUM IN SUPPORT OF MOTION TO
SUPPRESS EVIDENCE FROM UNLAWFUL SEARCH OF
COMPUTER

APPENDIX 5-5: MEMORANDUM IN SUPPORT OF MOTION TO
SUPPRESS EVIDENCE FROM WARRANTLESS SEARCH

APPENDIX 5-6: MEMORANDUM IN SUPPORT OF MOTION TO
SUPPRESS EVIDENCE FROM UNLAWFUL STOP

CHAPTER 6: THE PRIVILEGE AGAINST SELF-INCRIMINATION

6.1 INTRODUCTION
        6.101 Historical Development
        6.102 Justifications for the Privilege
        6.103 The Privilege and Police Interrogation
    
6.2 PROCEEDINGS IN WHICH THE PRIVILEGE
MAY BE ASSERTED
        6.201 In General
        6.202 Pretrial Discovery
        6.203 Psychiatric Examinations

6.3 WHO MAY ASSERT THE PRIVILEGE

6.4 HOW THE PRIVILEGE IS ASSERTED

6.5 NATURE OF THE PRIVILEGE
        6.501 In General
        6.502 Compulsion
        6.503 Testimonial Communication
        6.504 Incrimination
        6.505 Governmental Reporting Requirements

6.6 WAIVER

6.7 IMMUNITY

6.8 CONSEQUENCES OF ASSERTING THE PRIVILEGE
        6.801 In General
        6.802 Impeachment with or Comment upon Individual’s
        Silence
        6.803 Assertion of the Privilege on Cross-Examination
        6.804 Jury Instructions
        6.805 Governmental Sanctions

APPENDIX 6-1: MOTION IN LIMINE TO PREVENT
PROSECUTORIAL COMMENT

APPENDIX 6-2: MOTION IN LIMINE TO PREVENT CROSSEXAMINATION

APPENDIX 6-3: MOTION TO QUASH SEARCH WARRANT

CHAPTER 7: CONFESSIONS

7.1 INTRODUCTION

7.2 RIGHTS WARNINGS
        7.201 In General
        7.202 When Rights Warnings Are Required
        7.203 Miranda Warnings Generally
        7.204 Giving Miranda Warnings
        7.205 Waiver and Affirmative Exercise of Miranda Rights
        7.206 Miranda Exclusionary Rule

7.3 RIGHT TO COUNSEL AT INTERROGATIONS

7.4 VOLUNTARINESS DOCTRINE
        7.401 In General
        7.402 Coercion
        7.403 Nature of the Declarant
        7.404 Deceit
    
7.5 LITIGATING ADMISSIBILITY OF ADMISSIONS AND
CONFESSIONS
        7.501 In General
        7.502 Corroboration
    
APPENDIX 7-1: MOTION IN LIMINE—INTRODUCE
DEFENDANT’S WHOLE STATEMENT

APPENDIX 7-2: MOTION TO SUPPRESS DEFENDANT’S
STATEMENTS

APPENDIX 7-3: MOTION TO SUPPRESS STATEMENTS—LONG
FORM

CHAPTER 8: EYEWITNESS IDENTIFICATION PROCEDURES

8.1 INTRODUCTION
        8.101 Background
        8.102 Other Constitutional Concerns
    
8.2 THE RIGHT TO COUNSEL
        8.201 In General
        8.202 When the Right Attaches
        8.203 Scope of the Right
        8.204 Attorney’s Role in Identification Proceedings
        8.205 Waiver
        8.206 Application of the Exclusionary Rule
    
8.3 SUGGESTIVE PRETRIAL IDENTIFICATION PROCEDURES
        8.301 Background
        8.302 The Standard
        8.303 Application of the Standard
        8.304 Use of Expert Witnesses
    
8.4 EVOLVING JURISPRUDENCE
        8.401 New Jersey “Reliability” Test
        8.402 Impact on Virginia
        8.403 Representative Cases
    
APPENDIX 8-1: MOTION FOR NON-SUGGESTIVE
IDENTIFICATION PROCEDURE

APPENDIX 8-2: MOTION TO SUPPRESS UNDULY SUGGESTIVE
IDENTIFICATION

APPENDIX 8-3: MEMORANDUM BASED ON STATE V.
HENDERSON

APPENDIX 8-4: VIRGINIA MODEL JURY INSTRUCTION NO.
2.800— NOTE ON EYEWITNESS IDENTIFICATION

APPENDIX 8-5: VIRGINIA DEPARTMENT OF CRIMINAL
JUSTICE SERVICES: MODEL POLICY ON EYEWITNESS
IDENTIFICATION

CHAPTER 9: PRETRIAL PROCEEDINGS

9.1 INITIAL INVESTIGATION AND CLIENT INTERVIEW
        9.101 Value and Purpose of Interview
        9.102 Preparation for Interview and Initial Steps
        9.103 Conducting the Interview
        9.104 Advice to the Client

9.2 DISCOVERY
        9.201 Defendant’s Discovery Generally
        9.202 Commonwealth’s Duty to Disclose Exculpatory
        Evidence

9.3 THE PRELIMINARY HEARING
        9.301 In General
        9.302 Procedure
        9.303 Practice

9.4 THE GRAND JURY
        9.401 General Functions
        9.402 Regular Grand Juries: Selection and Operation
        9.403 Regular Grand Juries: Hearings and Deliberations
        9.404 Special Grand Juries
        9.405 Representing Clients Before Grand Juries
        9.406 Multi-Jurisdiction Grand Juries

9.5 THE CHARGE UPON WHICH THE ACCUSED IS TRIED
        9.501 In General
        9.502 Form and Content of the Indictment and the
        Information
        9.503 Joinder of Offenses or Defendants in an Indictment or
        Information
        9.504 The Formal Charge
        9.505 Amendment to the Formal Charge
        9.506 Bill of Particulars

9.6 THE ARRAIGNMENT
        9.601 Scope
        9.602 Procedure
    
9.7 PLEAS
        9.701 Permissible Pleas
        9.702 Procedure for Entering Guilty Plea
        9.703 Requirement That Plea Be Voluntary and Intelligent
        9.704 Consequences of Guilty Plea
        9.705 Withdrawal of Plea
        9.706 Practice
    
9.8 PLEA-BARGAINING

9.9 PRETRIAL MOTIONS
        9.901 In General
        9.902 Categories of Defenses and Objections
        9.903 Procedure
        9.904 Affidavits and Certificates of Analysis
        9.905 Jurisdiction and Venue
        9.906 Motions in Limine
        9.907 Insanity Defense
        9.908 Competency to Stand Trial
        9.909 Continuance
    
APPENDIX 9-1: NOTICE AND MOTION TO CLARIFY
COMMONWEALTH’S DISCOVERY OBLIGATIONS

APPENDIX 9-2: DEFENDANT’S MOTION TO COMPEL

APPENDIX 9-3: MOTION FOR SEPARATE TRIAL AS TO
CHARGES

APPENDIX 9-4: MOTION FOR SEPARATE TRIAL AS TO
CODEFENDANT

APPENDIX 9-5: ORDER GRANTING SEPARATE TRIAL FROM
CODEFENDANT

APPENDIX 9-6: MOTION FOR A BILL OF PARTICULARS

APPENDIX 9-7: MOTION FOR CLOSURE OF PRELIMINARY
HEARING

APPENDIX 9-8: MOTION IN LIMINE TO PRECLUDE TESTIMONY
REGARDING COLLATERAL EVIDENCE

APPENDIX 9-9: MOTION IN LIMINE TO EXCLUDE 911 TAPE

APPENDIX 9-10: MOTION FOR APPOINTMENT OF MENTAL
HEALTH EXPERT

APPENDIX 9-11: MOTION TO DISMISS—NOT A LESSER
INCLUDED OFFENSE

APPENDIX 9-12: MOTION FOR BILL OF PARTICULARS

APPENDIX 9-13: MOTION FOR CONTINUANCE

APPENDIX 9-14: CONTINUANCE ORDER

APPENDIX 9-15: MOTION FOR DISCOVERY AND INSPECTION—
SHORT FORM

APPENDIX 9-16: MOTION FOR DISCOVERY AND INSPECTION—
LONG FORM

APPENDIX 9-17: NOTICE OF MOTION

APPENDIX 9-18: MOTION IN LIMINE TO LIMIT PRESENTATION
OF PHOTOGRAPHS

APPENDIX 9-19: WAIVER OF RIGHTS FORM

APPENDIX 9-20: SUGGESTED QUESTIONS TO BE ASKED WHEN
TAKING PLEAS OF GUILTY OR NOLO CONTENDERE—
MISDEMEANOR PROCEEDINGS IN DISTRICT AND
CIRCUIT COURTS

CHAPTER 10: CONSTITUTIONAL AND STATUTORY
DOCTRINES AFFECTING THE TRIAL


10.1 STATUTES OF LIMITATIONS

10.2 PUBLIC TRIAL; PRESENCE OF THE ACCUSED;
PHYSICAL RESTRAINTS
        10.201 Public Trial.
        10.202 Presence of the Accused
        10.203 Physical Restraint
    
10.3 PREJUDICIAL PUBLICITY
        10.301 In General
        10.302 Judicial Authority to Control or Prevent
        Prejudicial Publicity
        10.303 Broadcasting of Trials
        10.304 Procedure Following Excessive Publicity
    
10.4 BURDENS OF PROOF AND PRESUMPTIONS
        10.401 Background
        10.402 Shifting the Burden to the Defendant
        10.403 Inferences and Presumptions
        10.404 Sentencing
    
10.5 SPEEDY TRIAL
        10.501 In General
        10.502 The Constitutional Standard
        10.503 The Statutory Standards
    
10.6 DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL
        10.601 In General
        10.602 When Jeopardy Attaches
        10.603 Mistrials
        10.604 Retrial Following Appeal
        10.605 The “Same Offense” Concept
        10.606 Multiple Punishments for the Same Offense
        10.607 Forfeitures and Administrative Sanctions
        10.608 Statutory Implementation
        10.609 Collateral Estoppel and Res Judicata

10.7 CONFRONTATION AND CROSS-EXAMINATION
        10.701 In General
        10.702 Hearsay
        10.703 Prior Recorded Testimony
        10.704 Extrajudicial Statements of a Codefendant
        10.705 Adverse Witnesses
        10.706 The Right to “Face” One’s Accusers
        10.707 Cross-Examination of Prosecution Witnesses
    
10.8 COMPULSORY PROCESS
        10.801 In General
        10.802 Witnesses
        10.803 Documentary Evidence and Objects
    
10.9 JUDICIAL OR PROSECUTORIAL MISCONDUCT,
BIAS, OR DISABILITY
        10.901 In General
        10.902 Judges
        10.903 Prosecutors
    
10.10 EX POST FACTO LAWS

10.11 RETROACTIVITY OF COURT DECISIONS AND STATUTES

10.12 ACCORD AND SATISFACTION

APPENDIX 10-1: AFFIDAVIT AND AGREEMENT BASED UPON
ACCORD AND SATISFACTION

APPENDIX 10-2: MOTION TO DISMISS BASED ON ACCORD
AND SATISFACTION

APPENDIX 10-3: MOTION TO DISMISS—STATUTE OF
LIMITATIONS

APPENDIX 10-4: MOTION TO DISMISS INDICTMENT ON
CONSTITUTIONAL GROUNDS

APPENDIX 10-5: ORDER TO SECURE ATTENDANCE OF
OUT-OF-STATE WITNESSES

APPENDIX 10-6: CERTIFICATE FOR ATTENDANCE OF
OUT-OF-STATE WITNESS

APPENDIX 10-7: PETITION FOR CERTIFICATE FOR OUT-OFSTATE
WITNESS

APPENDIX 10-8: MOTION FOR RECUSAL

CHAPTER 11: THE TRIAL

11.1 VENUE AND CHANGE OF VENUE
        11.101 Venue
        11.102 Change of Venue
    
11.2 JURY SELECTION
        11.201 Right to Jury Trial
        11.202 Number of Jurors
        11.203 Selection and Summons Procedures
        11.204 Errors in the Selection Process
        11.205 Statutory Qualifications and Exemptions
        11.206 Challenge to Jurors
        11.207 Jury Selection: Practice
    
11.3 OPENING STATEMENT
        11.301 In General
        11.302 Scope and Limits
        11.303 Objections
        11.304 Practice
    
11.4 PRESENTING THE EVIDENCE
        11.401 Testimony of the Accused
        11.402 Witnesses
        11.403 Exclusion of Witnesses
        11.404 Expert Witnesses
        11.405 Motion for Mistrial
        11.406 Motion to Strike the Evidence
        11.407 Practice: Planning the Defense
    
11.5 INSTRUCTIONS TO THE JURY
        11.501 Procedure
        11.502 Purpose and Scope
        11.503 Content of Instructions
    
11.6 ARGUMENT IN SUMMATION
        11.601 In General
        11.602 Limitations
        11.603 Objections
        11.604 Practice
    
11.7 VERDICT AND POST-VERDICT MOTIONS
        11.701 Verdict
        11.702 Polling the Jury
        11.703 Motion to Set Aside the Verdict
        11.704 Motion for a New Trial on the Basis of Newly
        Discovered Evidence
        11.705 Juror Misconduct
        11.706 Expungement
    
APPENDIX 11-1: JUROR QUESTIONNAIRE

APPENDIX 11-2: MOTION IN LIMINE TO HAVE THE
DEFENDANT PRESENTED IN THE COURTROOM
NOT IN HANDCUFFS AND JAIL UNIFORM

APPENDIX 11-3: MOTION IN LIMINE TO LIMIT THE
PRESENCE OF LAW ENFORCEMENT PERSONNEL
IN THE COURTROOM

APPENDIX 11-4: MOTION TO RECONSIDER

APPENDIX 11-5: PETITION FOR EXPUNGEMENT OF
CRIMINAL RECORD

APPENDIX 11-6: ORDER OF EXPUNGEMENT

CHAPTER 12: SENTENCING

12.1 AUTHORITY TO SENTENCE
        12.101 Jury Trials
        12.102 Bench Trials

12.2 SENTENCING LIMITATIONS

12.3 DISCRETIONARY SENTENCING GUIDELINES
        12.301 In General
        12.302 Departure from Guidelines
        12.303 Applicable Version of Guidelines
        12.304 Federal Sentencing Guidelines
        12.305 Failure to Submit a Sentencing Factor to the Jury
        12.306 Post-Release Supervision
        12.307 Double Jeopardy Challenge to a Concurrent Sentence
    
12.4 PRONOUNCEMENT AND ALLOCUTION
        12.401 Pronouncement
        12.402 Allocution
    
12.5 PRESENTENCE INVESTIGATION AND REPORT AND
VICTIM IMPACT STATEMENT
        12.501 Procedure
        12.502 Contents of the Report
        12.503 Victim Impact Statement
        12.504 Hearsay
        12.505 Preparing for the Sentencing Hearing

12.6 PROBATION OR SUSPENSION OF SENTENCE
        12.601 In General
        12.602 Terms and Conditions
        12.603 Revocation
        12.604 Deferred Disposition after Entry of Guilty Plea

12.7 INDETERMINATE COMMITMENT
        12.701 Authority of Court
        12.702 Procedure
        12.703 Terms
        12.704 Release Procedure
    
12.8 SPECIAL SENTENCING PROVISIONS
    12.801 Concurrent and Consecutive Sentences
        12.802 Third Conviction of Act of Violence
        12.803 Crimes Involving Sexual Abnormality
        12.804 Conviction of a Combination of Felonies and
        Misdemeanors
        12.805 Use of a Firearm in Commission of Specified Felonies
        12.806 Boot Camp Incarceration
        12.807 Other Alternative or Additional Sentencing
    
12.9 CRUEL AND UNUSUAL PUNISHMENT

12.10 JUDGMENT
        12.1001 Procedure
        12.1002 Finality

APPENDIX 12-1: COLLATERAL CONSEQUENCES OF FELONY
CONVICTIONS

CHAPTER 13: APPEALS

13.1 APPEALS IN CRIMINAL CASES GENERALLY
        13.101 General Constitutional and Statutory Framework
        13.102 Client’s Decision to Appeal
        13.103 Waiver of Right to Appeal by Pleading Guilty
        13.104 Appointment of Counsel and Expenses of Appeal
        13.105 Retrial Following Appeal
        13.106 Fugitive Disentitlement Doctrine
    
13.2 THE VIRGINIA COURT OF APPEALS
        13.201 In General
        13.202 Jurisdiction in Criminal Cases
    
13.3 APPEAL FROM CIRCUIT COURT TO COURT OF APPEALS
        13.301 Preliminary Steps
        13.302 Filing the Notice of Appeal
        13.303 Contents of Notice of Appeal
        13.304 Record on Appeal
        13.305 Petition for Appeal and Brief in Opposition
        13.306 Oral Argument and Disposition of Petition for Appeal
        13.307 Procedure for Appeals of Right and Awarded Appeals
        13.308 Appendix
        13.309 Oral Argument
        13.310 Disposition of the Appeal
        13.311 The “Right Result for the Wrong Reason” Doctrine
        13.312 Certification to Supreme Court

13.4 APPEAL FROM COURT OF APPEALS TO SUPREME
COURT
        13.401 Notice of Appeal
        13.402 Record on Appeal
        13.403 Petition for Appeal
        13.404 Brief in Opposition
        13.405 Assignments of Cross-Error
        13.406 Oral Argument and Disposition of Petition for Appeal
        13.407 Procedure After Petition Is Granted
        13.408 Briefs and Arguments

13.5 APPEAL FROM DISTRICT COURT TO CIRCUIT COURT
        13.501 In General
        13.502 Procedure
        13.503 Effect on Sentence and Charge in Circuit Court
        13.504 Attorney’s Duties to Client

13.6 COMMONWEALTH APPEALS
        13.601 In General
        13.602 Procedure
        13.603 Disposition
    
13.7 WRIT OF ACTUAL INNOCENCE
        13.701 Motion to Circuit Court for Investigation of New
        Biological Evidence
        13.702 Petition to Supreme Court for Writ of Actual
        Innocence (Biological Evidence)
        13.703 Action Not Basis for Relief by Habeas Corpus,
        Appellate Proceeding, or Action for Damages
        (Biological Evidence)
        13.704 Petition for Writ Based on Non-biological Evidence
        13.705 Bond Pending Hearing

13.8 DELAYED APPEALS

APPENDIX 13-1: NOTICE OF APPEAL FROM TRIAL COURT
(RULE 5A:6)

APPENDIX 13-2: AFFIDAVIT TO WITHDRAW A CRIMINAL
APPEAL

APPENDIX 13-3: BOND FOR COSTS AND SUSPENSION ON
APPEAL

APPENDIX 13-4: ADDITIONAL SECURITY FOR APPEAL

APPENDIX 13-5: DEMAND FOR HEARING BY THREE-JUDGE
PANEL

APPENDIX 13-6: MOTION FOR EXTENSION OF TIME TO FILE
TRANSCRIPTS

APPENDIX 13-7: INSTRUCTIONS AND FORMS FOR A PETITION
FOR A WRIT OF ACTUAL INNOCENCE TO THE SUPREME
COURT OF VIRGINIA

APPENDIX 13-8: PETITION FOR A WRIT OF ACTUAL
INNOCENCE BASED ON NONBIOLOGICAL EVIDENCE—
THE COURT OF APPEALS OF VIRGINIA

TABLE OF AUTHORITIES

INDEX

Authors

Editors

Corinne J. Magee, The Magee Law Firm / McLean (Expand/Collapse Bio)

Corinne J. Magee, co-editor of this book and author of Chapters 5 and 7, is a principal at The Magee Law Firm in McLean. Ms. Magee graduated with honors from the National Law Center at the George Washington University in 1979. Before starting The Magee Law Firm with her husband in 2003, she worked as a staff attorney for the Rhode Island Supreme Court, as an Assistant Commonwealth’s Attorney in Fairfax County, and as a solo practitioner, focusing on criminal defense.

Ms. Magee is an active member of the Fairfax County Bar Association, where she previously chaired the Criminal Practice Section for 12 years. She is a past-president of the Virginia Association of Criminal Defense Lawyers (VACDL), a member of the National Association of Criminal Defense Lawyers NACDL), and a member of the criminal practice sections of The Virginia Bar Association. She regularly teaches continuing legal education courses for the Fairfax Bar Association, VACDL, Virginia Trial Lawyers Association (VTLA), Virginia CLE, and the Virginia Indigent Defense Commission, as well as a number of other bar associations and organizations. In 2007, Ms. Magee was recognized as one of Virginia’s Leaders in the Law for her work in challenging the abusive driver civil remedial fees in the courts.

Ms. Magee has authored an article, “When Juries Punish too Much; Virginia’s Sentencing System Scares Criminal Defendants Away From Trial,” 27 Legal Times 27 (March 22, 2004), and has written the Fairfax Criminal Practice Manual (2006), which is distributed by the Fairfax Bar Association.

David L. Heilberg, Dygert Wright Hobbs & Heilberg, PLC / Charlottesville (Expand/Collapse Bio)

David L. Heilberg, co-editor of this book and author of Chapter 8, is a partner at the firm Dygert Wright Hobbs & Heilberg, PLC, in Charlottesville. Mr. Heilberg is within his fourth decade of experience frequently handling bench and jury trials. He received his B.A. from Union College (NY) in 1975 and his J.D. from Washington & Lee University in 1979, where he has taught trial advocacy as adjunct faculty. He started his private law practice in Charlottesville in 1982 after prosecuting in Harrisonburg and Rockingham County for three years. Mr. Heilberg was the 2011 President of the Virginia Association of Criminal Defense Lawyers and regularly represents clients throughout Central Virginia and the Shenandoah Valley. Starting in 2011, Mr. Heilberg has been annually designated as a “Super Lawyer” in Virginia in the field of criminal defense and is AV-rated by Martindale-Hubbell/Lawyers.com and rated 10.0 by AVVO. His practice areas include adult and juvenile (Virginia and federal trials and appeals) criminal, capital murder, driving under the influence, traffic, and plaintiff’s personal injury cases.

Timothy C. Carwile, Allen & Carwile, PC / Waynesboro (Expand/Collapse Bio)

Timothy C. Carwile, co-editor of this book and author of Chapters 2 and 9, lives and practices law in the Shenandoah Valley of Virginia and is a principal in the firm of Allen & Carwile, PC, in Waynesboro. He holds a B.A. in English from the University of Virginia and a J.D. from the T.C. Williams School of Law of the University of Richmond. Mr. Carwile was a prosecutor for eight years in Waynesboro before concentrating on criminal defense work. He is a former president of the Augusta County-Staunton-Waynesboro Bar Association and a former member of the Mandatory Continuing Legal Education Committee appointed by the Virginia Supreme Court. He currently serves the Virginia State Bar as chair of its Eighth District Ethics Committee and the Augusta County Circuit Court as Commissioner; he is also a Substitute District Court Judge and has been recognized by a Martindale-Hubbell Peer Review Rating as an “AV Preeminent” attorney. Mr. Carwile has frequently lectured to law enforcement and legal organizations on various criminal law topics, including DUI and traffic defense and prosecution.

Authors

Hon. Manuel A. “Manny” Capsalis, General District Court Judge, Nineteenth Judicial District / Fairfax (Expand/Collapse Bio)

Judge Manuel A. “Manny” Capsalis, author of Chapter 6, is a judge in the Nineteenth Judicial District, serving in the Fairfax County General District Court commencing on July 1, 2015. He previously served from 2003-2015 as a substitute judge in the district courts throughout Northern Virginia.

Before his judicial appointment, Judge Capsalis was the managing partner of the law firm Capsalis Fitzgerald, PLC. His practice concentrated in criminal and civil litigation. He also was the Town of Herndon’s Deputy Town Attorney and its prosecutor from 1989-1992 and from 1994-2015.

Judge Capsalis served as president of the Virginia State Bar (VSB) in 2008-2009. From 2001-2011 he was a member of Bar Council, the governing body of the VSB, and was a member of its Executive Committee from 2005-2010. He is a past member of the VSB’s Standing Committee on Professionalism. From 2000-2003, he served as a faculty member of the VSB’s Harry L. Carrico Professionalism Course and also served as a faculty member of the VSB’s Law School Professionalism Program. He is a past-chair of the VSB’s Conference of Local Bar Associations and served on its Board of Directors from 1999-2006. He was the first chair of the VSB’s Diversity Conference and a founding member of its Board of Governors. He is a past member of the VSB’s Budget and Finance Committee. He also is a past member of the Chief Justice’s Indigent Defense Training Initiative.

Judge Capsalis served as president of the Virginia Law Foundation in 2012-2013, and from 2006-2014 and recommencing in 2016 he has served as a member of its Board of Directors. In 2008 he was made a Fellow of the Virginia Law Foundation and currently serves as chair of the Fellows Committee. He is an emeritus member of the George Mason American Inn of Court.

He is a member of the Virginia Holocaust Museum’s Nuremberg Courtroom Committee. He also is a member of the Board of Directors of Lawyers Helping Lawyers. In 2010 he was made a Fellow of the American Bar Foundation.

Judge Capsalis served as president of the Arlington County Bar Association in 1999-2000 and was a member of the Board of Directors of both the Arlington County Bar Association and the Arlington County Bar Foundation. In 2009 he received the William L. Winston Award, the highest honor bestowed by the Foundation. In 2014 he was recognized by Virginia Lawyers Media as a “Leader in the Law.” In 2015 he received the Clarence M. Dunnaville, Jr. Achievement Award presented by the Diversity Conference of the Virginia State Bar.

He has frequently lectured throughout Virginia, speaking at law schools, colleges, high schools, citizens groups, law enforcement groups, continuing legal education (CLE) seminars, and a wide array of local and state bar association-related events. He currently focuses on CLE ethics presentations. He received degrees from Duke University (BA 1981) and George Mason University (MA 1984 (History) and JD 1988) where he was Editor-in-Chief of the Law Review.

Muhammad Elsayed, Greenspun Shapiro PC / Fairfax (Expand/Collapse Bio)

Muhammad Elsayed, author of Chapter 3, is an attorney at the firm of Greenspun Shapiro PC in Fairfax. Mr. Elsayed is a criminal defense attorney with experience representing individuals in state and federal court in criminal prosecutions and investigations. He received his B.S., summa cum laude, from George Mason University in Administration of Justice in 2010 and his J.D., summa cum laude, from George Mason University School of Law in 2013. During law school, Mr. Elsayed gained experience through internships at the Fairfax County Public Defender’s Office, the Federal Public Defender’s Office for the Eastern District of Virginia, and the Arlington County Commonwealth Attorney’s Office. After graduating from law school, Mr. Elsayed joined the firm Wiley Rein LLP in Washington, D.C., where he represented insurance companies in coverage disputes and insurance litigation. In 2014, Mr. Elsayed joined the firm Greenspun Shapiro PC, where he currently represents clients in a variety of criminal and civil matters, including traffic offenses, driving under the influence, criminal investigations, and criminal prosecutions at the state and federal levels.

André A. Hakes, Tucker Griffin Barnes P.C. / Charlottesville (Expand/Collapse Bio)

André A. Hakes, author of Chapter 11, is a partner at the firm of Tucker Griffin Barnes, P.C., in Charlottesville. Ms. Hakes has more than 20 years of experience, frequently handling bench and jury trials. A “Double-Hoo”, she received her B.A. from the University of Virginia in 1993 and her J.D. from the same in 1996. She was a guest instructor at the Shenandoah Criminal Justice Training Academy, the University of Virginia School of Law, and Piedmont Virginia Community College, has served as a Special Justice, and also served on the board of the Virginia ACLU and the Charlottesville Albemarle Bar Association. She is currently serving on the board of the Virginia Association of Criminal Defense Lawyers. Her practice includes many aspects of Virginia criminal defense and related matters, including significant trial experience defending murder, rape and other violent and sex offenses, DUI, and college Title IX sexual misconduct proceedings.

Mikhail N. Lopez, Greenspun Shapiro PC / Fairfax (Expand/Collapse Bio)

Mikhail N. Lopez, author of Chapter 4 of this book, is an attorney at the firm of Greenspun Shapiro PC in Fairfax. Mr. Lopez has over six years of experience handling bench and jury trials throughout the Northern Virginia area. He received his B.A. from the College of William and Mary in 2007 and his J.D. from the University of California, Berkeley School of Law (Boalt Hall) in 2011. He started practicing law in Fairfax in 2012 after passing the California and Virginia bar exams. Mr. Lopez was also the 2016-2017 President of the Hispanic Bar Association of Virginia. He regularly represents clients throughout Fairfax County and City, Prince William County, Loudoun County, Arlington County, the City of Alexandria, the U.S. District Court for the Eastern District of Virginia, and the appellate Courts of Virginia as well as the Fourth Circuit Court of Appeals. Starting in 2016, Mr. Lopez has been annually designated as a Virginia Rising Star by Super Lawyers. His practice areas include all levels of federal and state criminal litigation, ranging from minor traffic tickets to rape, robbery, and murder cases at the state and federal levels in Virginia. In addition to his criminal practice, Mr. Lopez also represents individuals in various types of civil litigation, such as personal injury, contract disputes, and other torts. He also handles appeals of all of the foregoing types of cases at the state and federal levels.

Jacqueline M. Reiner, Jacqueline M. Reiner, PLLC / Richmond (Expand/Collapse Bio)

Jacqueline M. Reiner, author of Chapter 12, has more than 20 years of experience litigating bench and jury trials in the state and federal courts across Virginia. Ms. Reiner graduated from the University of Richmond School of Law where she received the VTLA Student Trial Advocacy Award. Ms. Reiner has also taught trial advocacy as an adjunct professor and lectures on professionalism and courtroom decorum. Ms. Reiner began her career as a prosecutor for the City of Richmond and currently serves the Commonwealth of Virginia as a substitute judge. Ms. Reiner is licensed to practice in all state courts in both Virginia and New York, as well as the Eastern and Western Districts of Virginia, the United States Court of Appeals for the Fourth Circuit, and the Federal Claims Court. Ms. Reiner’s current practice focuses on adult and juvenile criminal litigation, including defending capital murders; murders, robberies, assaults and other violent crimes; narcotics and firearm offenses; traffic offenses; sexually violent predator civil commitment litigation; and family law.

Elwood Earl “Sandy” Sanders, Jr., Lantagne Legal Printing / Richmond (Expand/Collapse Bio)

Elwood Earl “Sandy” Sanders, Jr., author of Chapter 13, is a senior appellate consultant at Lantagne Legal Printing in Richmond. He received his B.A. from Wright State University in 1980 and his J.D. from the University of Alabama in 1983. He was in private law practice in Woodbridge in 1985, primarily conducting trials and appeals, many of which were for indigent criminal defendants. In 1996 he was hired by the Public Defender (now Indigent Defense) Commission to be first the Director, Capital and Appellate Services and then served as Virginia’s first Appellate Defender until 2000. Mr. Sanders then became an associate with the Framme Law Firm, advising Pre-Paid (now LegalShield) members with a myriad of matters and assisted Larry Framme in the successful defense at the Supreme Court of Virginia of a civil verdict of over a million dollars. In 2007 he came to Lantagne Legal Printing.

Mr. Sanders is author or co-author of ten law review/journal articles and several practice-oriented articles and has been an adjunct instructor at several colleges, universities, and law schools, including Virginia Commonwealth University, the School of Continuing and Professional Studies at the University of Richmond, the T.C. Williams School of Law at the University of Richmond, and Trevecca Nazarene University (online). He presently teaches non-profit law primarily for pastors and Salvation Army officers online at Nazarene Bible College. Mr. Sanders also conducts approved continuing legal education on state appellate procedure and ethics in state appeals for numerous local and specialty bar associations and law firms throughout the commonwealth. He was also instrumental in bringing the Olympic sport of curling to the commonwealth, as a founder and first president of the Curling Club of Virginia.

Seth C. Weston, Law Office of Seth C. Weston, PLC / Roanoke (Expand/Collapse Bio)

Seth C. Weston, author of Chapters 1 and 10, is a sole practitioner operating his own law firm, the Law Office of Seth C. Weston, PLC, in Roanoke. Mr. Weston has had a unique legal career that has seen him go from patrolling the streets around the U.S. Supreme Court as a police officer to presenting a case to the U.S. Supreme Court as a lawyer after it granted certiorari based upon his argument during a criminal trial in federal court. Mr. Weston was a police officer with the Metropolitan Police Department, Washington, D.C., for approximately 12 years, serving as a patrol officer, an investigator in the First District Gun Recovery Unit (a vice unit investigating illegal firearms), a patrol Sergeant, an Agent in the Office of Internal Affairs, the assistant in charge of all testing at the Police Academy, and ending his career as a detective Sergeant in the Seventh District. Mr. Weston received numerous honors and awards throughout his career, including being recognized as a “Top Cop” by the National Association of Police Organizations for his investigative work in a pipe bombing case, which was featured on America’s Most Wanted. He accomplished all this while attending the George Mason University Antonin Scalia Law School at night and working full time as a law enforcement officer. In 2003, he began his career as a lawyer as an Assistant Commonwealth’s Attorney for the City of Roanoke, after which he opened his own law practice in 2006. He regularly tries cases in all levels of federal and state courts throughout the greater Roanoke Valley and Southwest Virginia and has appeared before and argued cases at all levels of the Virginia appellate court system as well as the United States Supreme Court. He is now serving as the Secretary of the Executive Committee of the Board of Governors of the Criminal Law Section of the Virginia State Bar, and is President of the Virginia Association of Criminal Defense Lawyers (VACDL). Lastly, and most importantly, he is blessed with an incredible wife and three beautiful children and is thankful every day for them as they are a blessing far outweighing any right he has to expect such a blessing.

Prices

Print - $150
Download - $150
CD-ROM - $150
USB Flash Drive - $150
Both Print and Download - $175
Both Print and CD-ROM - $175
Both Print and USB Flash Drive - $175
Purchase Options
  • Add to Cart
Related Products
 
   FacebookFriday CLE and the Preakness CLE at Nationals Park
Clear the Docket

CONTACT US

Our Address

  • 105 Whitewood Road
    Charlottesville, VA 22901

JOIN OUR MAILING LIST:

  • Virginia CLE® is the non-profit educational division of the Virginia Law Foundation.

Virginia Law Foundation