July 2021 First Example Ten-point Answers to Virginia Essay Questions
July 2021 - QUESTION 2 – VIRGINIA BAR EXAMINATION
On April 1, 2018, Joe was working at the cash register in a convenience store in Hampton, Virginia, when Butch and Teeny approached the counter with some candy bars and chips in their hands as if to make a purchase. Butch was 25 years old and Teeny, his cousin, was only 16.
Butch put the merchandise on the counter, then suddenly pointed a pistol at Joe and demanded the money in the cash register. Teeny held out his backpack and told Joe to deposit the money there.
Just as Joe reached over to put the money in the backpack, Vincent walked into the store and realized that a robbery was in progress. Vincent attempted to call for help on his cell phone, but this attracted Butch’s attention. Butch then turned to face Vincent. Intending to shoot and disable Vincent’s cell phone, Butch fired his pistol, but instead of hitting the cell phone, one of the bullets hit Vincent in his chest killing him.
While all of this was happening, Dave was in the back corner of the store using the ATM and witnessed the entire incident. During the police investigation, when Dave was questioned about the shooting and robbery attempt, an old probation charge against Dave was discovered and Dave was arrested. The Commonwealth’s Attorney later agreed to dismiss that charge if Dave would testify against Butch and Teeny.
Two days after the incident, Butch and Teeny were arrested at 11:00 a.m. and taken to the police station. They were placed in separate interrogation rooms, and both were advised of their rights as required by Miranda v. Arizona. Butch initially waived his right to counsel and agreed to be questioned, but shortly after the questioning began, Butch realized the trouble he was in and told the officers, “I don’t want to talk anymore.” The officers continued to question him, and hours later at 3:00 a.m., Butch gave a full confession to the crimes.
Meanwhile, in the other room, Teeny also waived his right to counsel and agreed to be questioned. The police attempted to contact Teeny’s parents, but they were out of town and could not be reached. After seven hours of continuous questioning and seeing a video of himself in the convenience store which was taken by the store cameras, Teeny relented and admitted being at the convenience store and participating in the robbery attempt with Butch.
Thereafter, Butch and Teeny were both charged with the felonies of murder and attempted robbery, and counsel was appointed for them. Both Butch and Teeny waived their right to be tried by a jury; however, the Commonwealth’s Attorney refused to agree and demanded a jury. He also advised counsel for Teeny that he would seek to try Teeny as an adult. The court set trial dates for Butch and Teeny and ordered a jury trial for each. The following four pre-trial motions were filed:
- Teeny’s attorney filed a motion to vacate the order granting a jury trial because Teeny had waived his right to a jury.
- Teeny’s attorney also filed a motion to dismiss the indictment against Teeny for lack of jurisdiction.
- Butch’s attorney filed a motion to quash Butch’s confession on the ground that it had been procured in violation of his rights as announced in Miranda v. Arizona.
- The Commonwealth’s Attorney filed a motion in limine seeking to preclude the attorneys for Butch and Teeny from cross-examining Dave about his plea agreement on the ground that it was irrelevant to any issue in the cases against the two defendants.
|(a)||How should the court rule on each of the four motions? Explain fully.|
|(b)||Under what theory or theories might the Commonwealth reasonably support the charge of murder against Teeny? Explain fully.|
July 2021 - QUESTION 2 – EXAMPLE ANSWER #1
(a)(1) The court should deny the motion to vacate the jury trial order, because Teeny can only obtain a bench trial with the agreement of the Commonwealth. In Virginia, a criminal defendant has the right to a jury trial. He does not have the right to a bench trial; to waive the jury right and instead be tried by a judge, the Commonwealth must agree to the bench trial. Here, Teeny sought to be tried without a jury. However, "the Commonwealth's Attorney refused to agree and demanded a jury." Because of this refusal, Teeny cannot obtain a bench trial and must be tried by a jury.
(2) The court should dismiss the indictment against Teeny for lack of jurisdiction, as Teeny is a minor the Juvenile and Domestic Relations Court has not certified the charges against Teeny to circuit court. In Virginia, a minor over the age of 14 can be tried as an adult under certain circumstances. In each of these circumstances, the proceedings against the minor must begin in Juvenile and Domestic Relations Court (JDR). For a non-violent offense, JDR has discretion upon the Commonwealth's motion to certify the charges. For violent felonies and third controlled substance offenses where the minor is sixteen or seventeen, JDR must certify the charges on the Commonwealth's motion. For homicide charges where the minor is sixteen or seventeen, JDR must certify the charges regardless of the Commonwealth's motion. Here, Teeny was not charged in JDR as a juvenile; rather, he was apparently indicted and immediately brought to circuit court. As a minor, the charges agaisnt Teeny must initiate in JDR.Moreover, the Commonwealth can easily avoid this problem; because the crimes alleged occurred when Teeny was 16, the JDR court will be required to certify the charges to circuit court as they constitute homicide and, assuming the Commonwealth's motion, a violent felony.
(3) The court should grant the motion to quash Butch's confession, because Butch unequivocally invoked the right to remain silent announced in Miranda. Miranda covers custodial interrogations, and provides that a suspect may decline to answer questions of police or have counsel present when being questioned. Custody here means circumstances under which a person reasonably believes he is not free to leave. Interrogation involves any statement or conduct by the police which a law enforcement officer reasonably believes would elicit a response from the person being questioned. Here, Butch was undergoing a custodial interrogation. He was arrested, taken to an interrogation room, and police then began asking him direct questions. This means that he was able to invoke the right to remain silent.
To invoke the right to remain silent, the invocation must be unequivocal; i.e., it cannot merely suggest or hint at the desire to remain silent. Once an effective invocation has been made, police may not continue questioning. Here, Butch effectively invoked his right to remain silent. He stated directly, "I don't want to talk anymore." Despite this clear statement, police continued to question him for hours, only then obtaining a confession from Butch. This continuation of questioning after Butch's invocation was a blatant violation of the rights announced in Miranda.
(4) The court should deny the motion in limine to preclude the attorneys for Butch & Teeny from cross-examining Dave about his plea agreement, because Dave may be impeached for bias related to the plea agreement. In Virginia, information related to plea negotiations is generally inadmissible as substantive evidence. However, a witness may be questioned about a plea agreement made with the Commonwealth, tho show his bias. Here, Dave has entered into a plea agreement with the Commonwealth that included a dismissal of a prior charge against him in exchange for testimony in the case against Butch and Teeny. This is a situation in which the plea agreement is a potential source of bias, and the court should allow Butch and Teeny's attorneys to cross-examine Dave for such bias.
(b) The Commonwealth might reasonably support the charge of murder against Teeny under the theories of felony murder and as a principal in the second degree.
Felony murder occurs when a death occurs during the commission of a dangerous felony. In Virginia, these felonies include but are not limited to burglary, arson, rape, object sexual pentration, robbery, and kidnapping. Robbery involves the taking of the property of another from another person's body or presence using force or intimidation. There must be a causal and temporal connection between the underlying felony and the murder. Virginia follows the agency theory of felony murder liability, where a person is subject to liability for actions of agents, but not, e.g., bystanders or responding law enforcement, that cause death. Here, Teeny was in the course of commiting robbery with Butch. In the course of and during the robbery, Butch shot and killed another person who was attempting to contact police about the robbery, providing a causal and temporal connection between the crime being committed and Vincent's death. Moreover, Butch was not a bystander or other person, but rather can be considered an agent of Teeny for purposes of felony murder liability because they were committing the robbery together.
Teeny can also be considered a principal in the second degree. A principal in the second degree can be held criminally liable to the same extent as a principal in the first degree. A principal in the first degree carries out the actus reus of the crime with the intent of carrying out the crime. A principal in the second degree does not carry out the actus reus, but is present at the time of the crime committed and has the intent that the crime be committed. Here, intent need not be specific, but only requires that the crime committed be a natural and probable consequence of the actions of the principals. Here, Butch can likely be held liable as a principal in the first degree for the murder of Vincent. Teeny can thus be held liable as a principal in the second degree, as he did not actually shoot Vincent, but he was present at the time of the shooting, and intended the shooting in as much as it was a natural and probable consequence of the robbery Butch and Teeny were committing together.
July 2021 - QUESTION 2 – EXAMPLE ANSWER #2
(a)(1) The Court should deny Teeny’s first motion because the Commonwealth must consent to a waiver of a jury trial. Under Virginia Law, the right to a trial by jury attaches for felony charges and other serious crimes or fines. A defendant may waive the right to a jury trial with the consent of the judge and Commonwealth. However, a judge does not have to accept a defendant’s waiver if the Commonwealth does not consent. While a defendant has a right to a jury trial, they do not have a right to a a bench trial absent certain circumstances.
Here, Teeny is charged with two felonies, so the right to a jury trial would attach. However, he attempted to waive his right a jury trial. Even with the defendant waiving his right to a jury trial, the Commonwealth must consent to the waiver of the right to a trial by jury. Here, the Commonwealth did not give its consent for this waiver. Therefore, under this analysis the court should deny Teeny’s motion 1.
(a)(2) If we assume that the Commonwealth asking for a jury trial means that Teeny is in Circuit Court, the Court should grant Teeny’s attorney’s motion to dismiss the indictment against Teeny because the Circuit Court does not have jurisdiction over minors that are not first transferred. In Virginia, the Juvinile and Domestic Relations Court (JDR) has jurisdiction over the delinquent acts of minors over the age of 14. A minor may be transferred from JDR court to the Circuit Court based on (1) the age of the juvinile and (2) the severity of the crime. When a juvinile is between the ages of 16 and 17, and the crime is in the severity of murder or aggravated and malicious wounding, upon a finding of probable cause from the JDR court the transfer of the minor happens automatically, and the judge must certify for Circuit Court.
Here, there is nothing in the fact pattern that suggests that a JDR court found the initial probable cause determination that is required before transfer can occur. Teeny is a juvinile at the age of 16 under Virginia law. Teeny was arrested and taken to the police station two days after the incident. Thereafter, Teeny was charged with the felonies of murder and attempted robbery, and counsel was appointed for them. At no point in the fact pattern was a hearing in the JDR scheduled, or a determination of probable cause found to facilitate a transfer from JDR to Circuit Court. Even though Teeny is 16, and the charges are of the most severe range that transfer occurs automatically, a probable cause determination is still necessary. Therefore, the Court should grant the second motion.
(a)(3) The Court should most likely grant Butch’s attorney’s motion to quash Butch’s confession because although Butch initially waived his right to counsel, he may still invoke his right to remain silent under the 5th amendment. Furthermore, there is evidence that Butch’s confession was not voluntary. The 5th amendment protects citizens from self incrimination and attaches the right to remain silent, and the right to an attorney during custodial interrogation. In order for an interrogation to be custodial, it must be in circumstances where a reasonable person would not feel that they are free to leave. In order for the Commonwealth to use a confession, they must ensure that constitutional safeguards are in place (Miranda Warning), and prove that the statement is voluntary. The fifth amendment also provides the right to have counsel present if that right is specifically invoked in clear language.
Here, Butch was in a Custodial interrogation because he was at the police station and being asked questions by officers, with no reasonable expectation that he could leave. During Butch’s interrogation he initally waived his right to counsel. Later he said “I don’t want to talk anymore.” The police continued to question him, and hours later (11am-3am)he confessed. Even though Butch initally waived his right to counsel, he may still thereafter invoke his right to remain silent. It appears that he did so when he said “I don’t want to talk anymore,” and once that was said the police must stop the interrogation. Even if this does not count as an instance of invoking the right to remain silent, the Commonwealth still has to prove that this was a voluntary confession. Given the relatively young age of the defendant (25), the number of hours they interrogated him (at most 16), a Court would likely find this confession to not be voluntary, or highly suspicious. Therefore, the court should grant this motion.
(a)(4)The Court should deny the Commonwealth’s motion because Butch and Teeny have the right to Cross examine Dave about his biases. The very essence of the Confrontation Clause is that witnesses have a right to both confront the witnesses against them, and cross examine them. In Virginia, witnesses may be asked about the biases that they may have when testifying. Here, Dave could have a bias in favor of the Commonwealth because the Commonwealth is dropping charges if he testifies against Butch and Teeny. This is fertile ground for an inquiry into bias by cross examination, and both Butch and Teeny have a right to do so. Therefore, the commonwealth’s motion should be denied.
(b)(1)The Commonwealth could first support a murder charge against Teeny on the theory of Accomplice liability. In Virginia, accomplices are guilty of substantively the same crime as the principal of the crime. A principal is the typical actor in the crime who commits the necessary actus reas, while an accomplice is (1)present during the commission of the criminal act and (2)aids and abets the principal. An accomplice is separated from an accessory before the fact primarily by presence.
Here the principal is Butch because Butch committed the substantive act that killed Vincent. In Virginia, Murder is the unlawful killing of another person with malice. Malice can mean the intent to kill, transferred intent to kill, or can be reckless disregard for a high degree of danger (Reckless murder). Butch saw Vincent during the commission of the Robbery, and shot Vincent in the chest. Even though he only intended to shoot the phone out of his hand, this is reckless and wonton disregard for a high degree of danger that can form the requisite malice for the crime. Therefore, Butch as the principal should arguably be guilty of murder.
Because, Teeny was present during the commission of the criminal act, and aided and abetted Butch, he should be substantively guilty of the same act as the principal. Therefore, the Commonwealth could reasonably argue under a theory of accoplice liability.
(b)(2) The Commonwealth could also likely argue that Teeny is guilty under a Felony Murder theory. In Virginia, a co-felon is guilty for felony murder of any bystander to facilitate the commission of the underlying felony even if they themselves did not pull the trigger. Here, the crime that was attempted was robbery, and during the commission of that crime (as explained above) Butch murdered a bystander in the second degree. Under the Virginia Agency theory, Teeny could be charged under felony murder for Butch’s actions as Butch was acting in furtherance of the crime (phone call to 911). Therefore, the Commonwealth would feasibly charge Teeny with felony murder, though they would still need to prove the underlying crime.