Month: February 2012

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Should I have my criminal or civil case tried by a judge or a jury?

There are many factors that may impact your decision to have your case tried by a judge or jury.  Some of those factors are listed below:

(1)   The demographics of the jurisdiction where the case is pending may dictate whether a trial by jury will be advantageous to you.  Whether the jury will be liberal or conservative, rich or poor, sympathetic to you or antagonized by you, educated or uneducated.

(2)   The leanings or inclination of the judge may dictate your choice.

(3)   Whether certain evidence may be excluded from the jury but heard by the judge even if determined to be inadmissible and therefore not “formally” allowed to consider it.

(4)   The time and cost associated with trying a case by a jury is also a factor.  Generally speaking, jury trials require more time.

(5)   Many believe that juries are more inclined to find a reasonable doubt precluding conviction.

(6)   Some believe that during the sentencing phase of a trial, that juries are more likely to deliver a harsher sentence to those with extensive criminal histories which is introduced into evidence during the sentencing phase of a criminal trial.

 

Ultimately the decision to have the case tried by a judge or jury is decision to be made after considering all of the factors with legal counsel.
Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

 

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“Exculpatory Evidence” – Does the prosecutor have a duty to disclose information which is favorable to the accused tending to negate this guilt or show that he is innocent?

With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecution’s case or aid the accused.

The role of a prosecutor is to see that justice is done. Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). “It is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.  Brady v. Maryland, 373 U.S. 83, 87 (U.S. 1963)

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

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Can I be tried twice for the same or similar charge?

Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction. The Double Jeopardy Clause of the 5th Amendment to the U.S. Constitution, provides that no   person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This protection applies both to successive punishments and to successive prosecutions for the same criminal offense.

The same-elements test, sometimes referred to as the “Blockburger” test, inquires whether each offense contains an element not contained in the other; if not, they are the “same offence” and double jeopardy bars additional punishment and successive prosecution.

United States v. Dixon, 509 U.S. 688, 695-696 (U.S. 1993)

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

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Do I have a right to a trial by jury?

Generally speaking, criminal defendants may demand a jury for all serious crimes and have their case tried by a jury of 12.  On appeals of misdemeanor crimes in the Circuit Court, a criminal defendant may demand a trial by a jury of 7.   In civil cases seeking money damages, generally a litigant may demand a trial by a jury of 7 jurors.

The United States Constitution guarantees the right to jury trial in serious criminal cases in state courts. It also guarantees the right to jury trial for a criminal contempt punished by a two-year prison term.

Article III, § 2, of the U.S. Constitution provides that “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .” The Sixth Amendment to the U.S. Constitution states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” The Fifth and Fourteenth Amendments forbid both the Federal Government and the States from depriving any person of “life, liberty, or property, without due process of law.” Bloom v. Illinois, 391 U.S. 194, 195 (U.S. 1968)

In civil cases, the right to a trial by jury generally depends on the availability of a jury trial in a particular type of case under the common law of England at the time of the adoption of the U.S. and State Constitutions (which allowed jury trials in its “courts of law” but not in its “courts of equity”). In practice, this means that jury trials are available in American civil cases in most cases seeking money damages on a tort law or contract law theory, but are rarely available when non-monetary damages, such as an injunction or declaratory relief are sought.  In equity cases, factual disputes are sometimes referred to juries for advisory opinions.  By statute, the right to a jury is available on a plea in bar.

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

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What right do I have to confront my accuser?

In a criminal case, a defendant cannot be deprived of the opportunity to put his evidence and version of the facts before the jury so “as to deprive a criminal defendant of his Sixth Amendment right to confront and cross-examine his accuser and to call witnesses in his defense,” Winfield v. Commonwealth, 225 Va. 211, 218, 301 S.E.2d 15, 19 (1983), (citing Davis v. Alaska, 415 U.S. 308 (1974)), or simply because the trial court finds the prosecutor’s version more credible than the defendant. See Graves v. Garraghty, 618 F. Supp. 1348, 1350-51 (E.D. Va. 1985).

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

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What are the penalties for misdemeanor convictions?

§ 18.2-11. Punishment for conviction of misdemeanor.

The authorized punishments for conviction of a misdemeanor are:

(a) For Class 1 misdemeanors, confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.

(b) For Class 2 misdemeanors, confinement in jail for not more than six months and a fine of not more than $1,000, either or both.

(c) For Class 3 misdemeanors, a fine of not more than $500.

(d) For Class 4 misdemeanors, a fine of not more than $250.

For a misdemeanor offense prohibiting proximity to children as described in subsection A of § 18.2-370.2, the sentencing court is authorized to impose the punishment set forth in subsection B of that section in addition to any other penalty provided by law.

(1975, cc. 14, 15; 1990, c. 788; 2000, c. 770.)

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

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What are the penalties for felony convictions?

§ 18.2-10. Punishment for conviction of felony; penalty.

The authorized punishments for conviction of a felony are:

(a) For Class 1 felonies, death, if the person so convicted was 18 years of age or older at the time of the offense and is not determined to be mentally retarded pursuant to § 19.2-264.3:1.1, or imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000. If the person was under 18 years of age at the time of the offense or is determined to be mentally retarded pursuant to § 19.2-264.3:1.1, the punishment shall be imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000.

(b) For Class 2 felonies, imprisonment for life or for any term not less than 20 years and, subject to subdivision (g), a fine of not more than $100,000.

(c) For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and, subject to subdivision (g), a fine of not more than $100,000.

(d) For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000.

(e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

(f) For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

(g) Except as specifically authorized in subdivision (e) or (f), or in Class 1 felonies for which a sentence of death is imposed, the court shall impose either a sentence of imprisonment together with a fine, or imprisonment only. However, if the defendant is not a natural person, the court shall impose only a fine.

For any felony offense committed (i) on or after January 1, 1995, the court may, and (ii) on or after July 1, 2000, shall, except in cases in which the court orders a suspended term of confinement of at least six months, impose an additional term of not less than six months nor more than three years, which shall be suspended conditioned upon successful completion of a period of post-release supervision pursuant to § 19.2-295.2 and compliance with such other terms as the sentencing court may require. However, such additional term may only be imposed when the sentence includes an active term of incarceration in a correctional facility.

For a felony offense prohibiting proximity to children as described in subsection A of § 18.2-370.2, the sentencing court is authorized to impose the punishment set forth in that section in addition to any other penalty provided by law.

(1975, cc. 14, 15; 1977, c. 492; 1990, c. 788; 1991, c. 7; 1994, 2nd Sp. Sess., cc. 1, 2; 1995, c. 427; 2000, cc. 361, 767, 770; 2003, cc. 1031, 1040; 2006, cc. 36, 733; 2008, c. 579.)

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

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What are my rights to a speedy trial in Virginia?

Code § 19.2-243, the speedy trial statute, provides that if a defendant accused of a felony is continuously held in custody from the time he is indicted, he must be tried within five months of the date of the indictment if there was no preliminary hearing or five months from the preliminary hearing. If he is not held in custody but is recognized for his appearance then the trial must begin within nine months. The statute also provides that if the trial does not commence within the stated time period, the defendant “shall be forever discharged from prosecution” for the charged offense.

Code § 19.2-243 paragraph 4 provides that calculation of the time period for commencing the trial will be tolled for time attributed to a continuance granted on a motion made by the defendant or his counsel, or time attributed to a continuance granted on a motion made by the Commonwealth in which the defendant or his counsel concurred or did not make a timely objection.

See Howard v. Commonwealth, 281 Va. 455, 459-60 (Va. 2011)

A claim of a violation of speedy trial rights under the federal constitution is resolved by the balancing of four factors – length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

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§ 19.2-243. Limitation on prosecution of felony due to lapse of time after finding of probable cause; misdemeanors; exceptions

Where a district court has found that there is probable cause to believe that an adult has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court; and if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced in the circuit court within nine months from the date such probable cause was found.

If there was no preliminary hearing in the district court, or if such preliminary hearing was waived by the accused, the commencement of the running of the five and nine months periods, respectively, set forth in this section, shall be from the date an indictment or presentment is found against the accused.

If an indictment or presentment is found against the accused but he has not been arrested for the offense charged therein, the five and nine months periods, respectively, shall commence to run from the date of his arrest thereon.

Where a case is before a circuit court on appeal from a conviction of a misdemeanor or traffic infraction in a district court, the accused shall be forever discharged from prosecution for such offense if the trial de novo in the circuit court is not commenced (i) within five months from the date of the conviction if the accused has been held continuously in custody or (ii) within nine months of the date of the conviction if the accused has been recognized for his appearance in the circuit court to answer for such offense.

The provisions of this section shall not apply to such period of time as the failure to try the accused was caused:

1. By his insanity or by reason of his confinement in a hospital for care and observation;

2. By the witnesses for the Commonwealth being enticed or kept away, or prevented from attending by sickness or accident;

3. By the granting of a separate trial at the request of a person indicted jointly with others for a felony;

4. By continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth, or by reason of his escaping from jail or failing to appear according to his recognizance;

5. By continuance ordered pursuant to subsection I or J of § 18.2-472.1 or subsection C or D of § 19.2-187.1;

6. By the inability of the jury to agree in their verdict; or

7. By a natural disaster, civil disorder, or act of God.

But the time during the pendency of any appeal in any appellate court shall not be included as applying to the provisions of this section.

For the purposes of this section, an arrest on an indictment or warrant or information or presentment is deemed to have occurred only when such indictment, warrant, information, or presentment or the summons or capias to answer such process is served or executed upon the accused and a trial is deemed commenced at the point when jeopardy would attach or when a plea of guilty or nolo contendere is tendered by the defendant. The lodging of a detainer or its equivalent shall not constitute an arrest under this section.

HISTORY: Code 1950, § 19.1-191; 1960, c. 366; 1974, c. 391; 1975, c. 495; 1984, c. 618; 1988, c. 33; 1993, c. 425; 1995, cc. 37, 352; 2002, c. 743; 2005, c. 650; 2007, c. 944; 2009, Sp. Sess. I, cc. 1, 4.

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Va. Const. Art. I, § 8 Criminal prosecutions

That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, and to call for evidence in his favor, and he shall enjoy the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers, nor be compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same offense.

Laws may be enacted providing for the trial of offenses not felonious by a court not of record without a jury, preserving the right of the accused to an appeal to and a trial by jury in some court of record having original criminal jurisdiction. Laws may also provide for juries consisting of less than twelve, but not less than five, for the trial of offenses not felonious, and may classify such cases, and prescribe the number of jurors for each class.

In criminal cases, the accused may plead guilty. If the accused plead not guilty, he may, with his consent and the concurrence of the attorney for the Commonwealth and of the court entered of record, be tried by a smaller number of jurors, or waive a jury. In case of such waiver or plea of guilty, the court shall try the case.

The provisions of this section shall be self-executing.

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.