CHAPTER 3: PRETRIAL PROCEDURES3.1 INTRODUCTION
3.2 BAIL
3.3 PRELIMINARY HEARING
3.301 No Right After Indictment
3.302 Multiple Charges
3.303 Testimony of Child Victims and Witnesses
3.304 Preservation of Preliminary Hearing Transcript
3.305 Admission of Preliminary Hearing Testimony of
Witness Absent at Trial
3.306 Preliminary Hearing Evidence Not a Substitute for
Bill of Particulars
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 Trial
3.1306 Use of Mental Evaluations at Penalty Phase
APPENDIX 3-1: BAIL PAPERS
APPENDIX 3-2: WOLFE BOND MOTION
APPENDIX 3-3: MOTION TO DECLARE THE VIRGINIA CAPITAL
MURDER AND DEATH PENALTY STATUTES
UNCONSTITUTIONAL
APPENDIX 3-4: 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 3-5: MOTION FOR A BILL OF PARTICULARS UNDER
SECTION 19.2-230
APPENDIX 3-6: MOTION FOR A BILL OF PARTICULARS UNDER
SECTION 19.2-266.2
APPENDIX 3-7: MOTION TO ENJOIN LAW ENFORCEMENT
OFFICERS FROM WEARING UNIFORMS IN COURTROOM
WHILE SITTING AS SPECTATORS, OR GRANT OTHER
APPROPRIATE RELIEF
APPENDIX 3-8: MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO ENJOIN LAW ENFORCEMENT OFFICERS
FROM WEARING UNIFORMS IN THE COURTROOM
AS SPECTATORS
APPENDIX 3-9: MOTION FOR APPOINTMENT OF QUALIFIED
EXPERTS
APPENDIX 3-10: MOTION FOR APPOINTMENT OF EXPERT
INVESTIGATOR
APPENDIX 3-11: MEMORANDUM IN SUPPORT OF MOTION FOR
APPOINTMENT OF AN EXPERT INVESTIGATOR
APPENDIX 3-12: MOTION FOR EX PARTE HEARING (EXPERTS)
APPENDIX 3-13: ATTORNEY AFFIDAVIT FOR MOTION FOR
EX PARTE HEARING (EXPERTS)
APPENDIX 3-14: MOTION FOR APPOINTMENT OF AN EXPERT
ON CONDITIONS OF INCARCERATION
APPENDIX 3-15: MEMORANDUM IN SUPPORT OF MOTION FOR
APPOINTMENT OF AN EXPERT ON CONDITIONS OF
INCARCERATION
APPENDIX 3-16: MOTION FOR DISCOVERY AND INSPECTION
APPENDIX 3-17: MEMORANDUM IN SUPPORT OF DISCOVERY
MOTION
APPENDIX 3-18: REQUEST FOR FORENSIC ANALYSIS
(MOTION FOR TESTING OF HUMAN HAIR)
APPENDIX 3-19: ORDER DIRECTING FORENSIC ANALYSIS
(TESTING OF HUMAN HAIR)
APPENDIX 3-20: MOTION TO DECLARE ALIBI PROVISION
UNCONSTITUTIONAL
CHAPTER 4: TRIAL4.1 RIGHT TO FAIR TRIAL
4.2 RIGHT TO PUBLIC TRIAL
4.201 Scope of Right
4.202 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 TRIAL5.1 INTRODUCTION
5.101 Conviction of Capital Murder and Noncapital Offense
5.102 Convictions on Two Separate Capital Murder
Indictments
5.103 Admissibility of Evidence Generally
5.104 No Instruction on Lingering Doubt as to Guilt
5.105 Evidence of Guilt or Innocence
5.106 Inconsistent Verdicts at Guilt Phase
5.107 Evidence of Guilt or Innocence
5.108 Change in the Law
5.109 Appearance of Defendant in Prison Clothes or
Shackles
5.2 “ELIGIBILITY” AND “SELECTION” PHASES
5.201 Eligibility Phase
5.202 Selection Phase
5.3 AGGRAVATING FACTORS
5.301 Vileness
5.302 Future Dangerousness
5.303 Victim Impact Evidence
5.304 Victims’ Statements
5.4 MITIGATION
5.401 Statutory Factors
5.402 Nonstatutory Factors
5.5 EXCLUSION OF MITIGATING EVIDENCE
5.501 Irrelevant Evidence
5.502 Mental Health Evidence
5.6 INSTRUCTIONS CONCERNING PAROLE ELIGIBILITY
5.7 JURY INSTRUCTIONS AND VERDICT FORMS
5.8 CLOSING ARGUMENT
5.801 Appeals to Emotions
5.802 “Send a Message” Arguments
5.803 Information on the Appellate Process
5.804 Religious Arguments
5.9 DEFENDANT’S PRESENCE DURING JURY
DELIBERATIONS
5.10 POLLING THE JURY
5.11 IMPEACHING THE JURY’S VERDICT
5.12 POST-SENTENCE REPORTS
5.13 RESENTENCING HEARINGS
APPENDIX 5-1: SAMPLE JURY VERDICT FORMS
APPENDIX 5-2: MOTION TO DECLARE THE “CONTINUING
THREAT” AGGRAVATING FACTOR UNCONSTITUTIONAL
IN LIGHT OF LAWLOR v. COMMONWEALTH
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 ISSUESINDEX