Criminal Law Commons^™

Federal Habeas Corpus: Greater Protection For "Innocent" State Prisoners After Jackson V. Virginia, Jennie L. Montgomery

University of Richmond Law Review

In Jackson v. Virginia, the Burger Court recently made an apparent "about face" with regard to the scope of powers extended to a federal habeas corpus court reviewing a state court conviction. On the basis of this ruling, habeas corpus petitioners may now demand federal court examination of whether the evidence produced at their trials was sufficient to justify a finding of guilt beyond a reasonable doubt. Jackson is, therefore, a significant step beyond the Warren Court rule that due process is violated only when the record is totally devoid of any evidence to support the conviction.

Filling In The Gaps Of Virginia Bail Reform, R. Bryan Hatchett

University of Richmond Law Review

The 1960's and early 1970's witnessed an unprecedented reform of the bail laws of this country. The reform has made it possible for a greater percentage of criminal defendants to be released before trial thereby avoiding the stigma and considerable prejudice flowing from incarceration. Even though the reform has also produced a modest increase in the number of persons who fail to appear for trial, on balance critical response to the reform has been favorable.

Rights Of The Convicted Felon On Parole, Howard E. Hill

University of Richmond Law Review

The forfeiture of various civil rights upon conviction of a felony is no modem innovation. Conviction of a crime in the Roman Republic resulted in the deprivation of many of the same rights denied convicted felons today. Most statutes define a "felony" in terms of the possible punishment for a particular act rather than in descriptions of the actual conduct forbidden. In Virginia "such offenses as are punishable with death or confinement in the penitentiary are felonies," while "all other offenses are misdemeanors." One unfortunate enough to be convicted of a felony becomes subject to sanctions imposed by the state. …

Virginia's Insanity Defense: Reform Is Imperative, William C. Waddell Iii

University of Richmond Law Review

Virginia is no exception to the statement that a great deal of time and energy has been expended by writers in addressing the defense ofinsanity. Unfortunately, instead of generating some notable reform, this fact has served to desensitize the legislators, the legal profession, and the public in this controversial area. In view of the current knowledge in the field of psychiatry, the approach for implementing the insanity defense in Virginia courts is not satisfactory.

Sentencing In Criminal Cases: How Great The Need For Reform?, Anthony P. Giorno

University of Richmond Law Review

For many years, the sentencing process of the criminal justice system sought to achieve four goals: deterrence, rehabilitation, incapacitation of the offender, and retribution for society and the victim. The achievement of these goals was implemented in the majority of jurisdictions through imposition of an indeterminate sentence and discretionary release by an administrative body-traditionally a parole board. This approach allowed courts to announce relatively long sentences as a deterrent to future criminal behavior and to placate the victim and society, but tempered the punishment by allowing early release on an individual basis as soon as the offender had been rehabilitated.

Barring Slayers' Acquisition Of Property Rights In Virginia: A Proposed Statute, Sandra Gross Schneider

University of Richmond Law Review

The above passage by Justice Benjamin Cardozo clearly reflects the age-old maxim of the common law, Nullus commodurn caperepotest de injuria sua propria, which expounds the philosophy that no individual shall profit from his own wrong. The present Virginia statute concerning homicide and succession to property was enacted by the legislature to reflect this common law policy. However, because of the very narrow scope of the statute and the requirement that it be strictly construed, it is presently inadequate to respond to many of the issues facing our judges in Virginia. Section 64.1-18 of the Virginia Code states that no …

Prison Inmate Marriages: A Survey And A Proposal, Jackson M. Bruce, John M. Claytor, Herman C. Daniel Iii

University of Richmond Law Review

This comment explores one facet of the issue of inmate civil rights: the right to marry. An analysis will be made of the current situation nationwide with particular emphasis on Virginia, including proposed guidelines for Virginia's Department of Corrections that reflect the current national trend with regard to inmate marriages.

Criminal Law-Victims' Rights-Virginia Adopts Statute To Compensate The Victims Of Crime, Charles W. Hazelwood Jr.

University of Richmond Law Review

Concern for the victims of crime has increased in recent years. The enactment by the Virginia General Assembly of a statute to compensate victims of crime reflected this concern. The General Assembly, "as a matter of moral responsibility," decided to aid victims of crime who suffer disability and financial hardship. Underlying Virginia's passage of a victim compensation statute was the recognition that civil remedies against the criminal offender generally have been unsuccessful.

Capital Punishment: Constitutional Parameters For The Ultimate Penalty, James F. Stutts

University of Richmond Law Review

Four years after Furmanv. Georgia, the Supreme Court has resolved the major question left unanswered by that decision - does capital punishment per se constitute cruel and unusual punishment in violation of the eighth amendment? The Court also announced the statutory standards which satisfy Furman's requirement that the death penalty not be imposed arbitrarily or capriciously. By a 7-2 vote, the Court held that the imposition of the death penalty for murder did not per se constitute cruel and unusual punishment. By the same vote, the Court upheld the capital sentencing statutes of Georgia, Florida and Texas, noting that arbitrary …

Criminal Law-Federal System Adopts Specific Parameters For The Constitutional Right To A Speedy Trial

University of Richmond Law Review

The right of every criminal defendant to a speedy trial is deeply entrenched in our legal heritage and is specifically included in the Bill of Rights of the United States Constitution. However, though the guarantee of a speedy trial is quite explicit, the courts generally have been confused as to the precise extent of this right. Indeed, the Supreme Court did not expressly recognize the right as fundamental until 1967, and until 1972 had provided no guidelines for determining whether a defendant had been denied the right to a speedy trial. The Court at that time refused to set specific …

Has The Burger Court Dealt A Death Blow To The Presumption Of Malice In Virginia?

University of Richmond Law Review

While presumptions and burdens of proof have generally eluded effective analysis, the presumption of malice has almost defied it. Notwithstanding a common law origin and the significance that instructions of the presumption of malice have played in many murder trials in Virginia, the presumption has constantly been under attack. This comment will explore the meaning of the presumption of malice and determine whether Virginia's approach violates the due process clause of the fourteenth amendment in light of the recent Supreme Court decision of Mullaney v. Wilbur.

Juvenile Court And Arrest Records, Adrienne Volenik

Law Faculty Publications

Recognizing the near impossibility of changing societal views toward juvenile offenders, many legislators have at- tempted instead to combat the harmful effects of a delinquency adjudication by providing for concealment of juvenile records, on the grounds that such concealment will aid the child's reintegration into society.

Expungement Of Arrest Records, Adrienne Volenik

Law Faculty Publications

Contrary to the philosophy of the juvenile court, it is undoubtedly a rare occasion when a child benefits from his exposure to the juvenile court system. Even when a child is actually rehabilitated by the process, the invidious effects that flow from being labeled a "juvenile delinquent" may serve to negate any benefit that he may have received. Perhaps the most unjustifiable of all side effects is the stigma that attaches to a child who has been arrested and subsequently either released without prosecution or acquitted. In a society that espouses the idea that an individual is innocent until proven …

Revision Of Virginia's Criminal Code

University of Richmond Law Review

On October 1, 1975 the criminal justice system of the Commonwealth of Virginia began to operate under revised codes of criminal law and procedure. Enacted during the last legislative session, Titles 18.2 and 19.2 contain an impressive array of new laws with which judges, lawyers, and law enforcement officers should quickly become familiar. In many instances, these new laws go far beyond recodification of existing laws. Several represent substantive changes which are quite controversial and remain hotly debated since the close of the legislative session.

Proposed Legislation- Criminal Law-Proposed Revisions Of Title 18.1- Designation Of Punishment And Capital Punishment (Senate Bill No. 56)

University of Richmond Law Review

The Virginia General Assembly, during a Special Session in 1971, directed the Virginia Code Commission to revise Title 18.1, Crimes and Offenses Generally, of the Code of Virginia. Senate Bill No. 562 was adopted in essentially the same form as the Code Commission's revisions, however, due to the lack of time, the bill was carried over until the next session. This article will analyze several areas contained in Senate Bill No. 56: Designation of Punishment and Capital Punishment.

Criminal Law-Evidence--Confession To Polygraph Operator Prior To Actual Test Held Admissible

University of Richmond Law Review

Rules of evidence governing the admissibility of confessions have devel- oped gradually throughout the history of Anglo-American jurisprudence. Initially any confession was admissible regardless of the methods by which it was obtained. The basic consideration was that the evidence admitted be truthful and reliable. To protect the integrity of judicial proceedings, safeguards were later developed to insure the reliability of confessions by a determination of the voluntariness with which they were given. Courts have struggled with the problem of formulating a workable definition of voluntariness and have not yet developed a uniform substantive test.

The Virginia Magistrate System, Ronald J. Bacigal

Law Faculty Publications

In Colonial Virginia the Justice of the Peace was in many respects the local governing authority. His powers ranged from the trial of criminal cases to the supervision of the building of warehouses and courthouses; the licensing of ferries; and the regulation of the legal and medical professions.

The powers of the Justice of the Peace gradually dwindled in favor of the courts and other local officials, until the Justice of the Peace system was finally abolished in 1974, and replaced with the Magistrate system.

The present day magistrate performs many purely clerical functions, but he also retains important judicial …

Search And Seizure- Knowledge Of Fourth Amendment Rights Not A Prerequisite To A Valid Consent Search

University of Richmond Law Review

The fourth amendment to the United States Constitution, applicable to the states through the fourteenth amendment, guarantees to every citizen the indefeasible right to be secure against unreasonable searches and seizures. As a response to a long history of English colonial abuses, the fourth amendment was intended by the drafters of the Bill of Rights to be a safeguard against governmental misuse of the writs of assistance' and the general warrant. The Supreme Court has broadly interpreted the constitutional mandate of the fourth amendment as proscribing all searches and seizures which do not comply with its stringent provisions. However, certain …

Recidivism: The Treatment Of The Habitual Offender

University of Richmond Law Review

Penal law and theory generally "addresses itself to two types of criminals: first offenders and habitual offenders or recidivists. Those in the latter group have been referred to as failures for two reasons: first, they have failed to alter their previous behavior and make an adequate adjustment upon returning to society; second, society has failed with them in terms of its efforts at correction, treatment, and rehabilitation. The traditional method of dealing with the recidivist has been to increase the punishment "increasing the dosage of a medicine which failed to cure when administered in small quantities." Indeed, upon conviction for …

An Introduction To Virginia's New Rules Of Criminal Practice And Procedure, Murray J. Janus

University of Richmond Law Review

On January 1, 1972 the new Virginia Rules of Criminal Practice and Procedure became effective, some three and one-half years after the President of the Virginia State Bar Association appointed a Special Committee to draft these proposed Rules. Mr. Justice Thomas C. Gordon, Jr., was appointed Chairman of the Committee in June of 1968. Peter C. Manson, Professor of Criminal Law at the University ,of.Virginia,acted as consultant for the Committee and he made available special student assistants who were invaluable with their research. In addition, two judges of courts of record with criminal jurisdiction, the Honorable Edmund P. Simpkins, Jr., …

The Defendant In Jeopardy- Is Virginia Unique?

University of Richmond Law Review

The constitutional and statutory safeguards against a person being twice placed in jeopardy for the same offense are well known both to laymen and lawyers alike. What has gone largely unnoticed by the Virginia courts is the applicability of the doctrine of res judicata to the area of criminal law. It is the purpose of this comment to make the reader aware of the doctrine of res judicata as it applies to criminal cases and to attempt to clear up the confusion which has developed in this area of Virginia law.

Recent Legislation, J. Rodney Johnson

University of Richmond Law Review

The 1972 session of the General Assembly was especially active in the areas of wills, trusts, and estates. Much of this legislation deals with fine points not affecting the average lawyer in his practice. However, the following items of legislation should be of general interest to the attorney whose practice involves probate work or estate planning, even though he does not hold himself out as a specialist in these areas.

Federal Court Intervention In Pending State Criminal Prosecutions- The Significance Of Younger V. Harris

University of Richmond Law Review

The recent United States Supreme Court decision of Younger v. Harris along with its companion cases represent the most significant development in the area of federal-state court relations since the Court decided Dombrowski v. Pfister in 1965. Dombrowski created grave doubts over the continued validity of the long established public policy against federal court interference with state court proceedings. Civil libertarians were quick to seize upon the broad assertions in that case as support for their efforts toward expanding the concept of federal court intervention in state criminal prosecutions. Though the Court was given the opportunity to reconcile the conflicting …

Plea Bargaining: The Case For Reform

University of Richmond Law Review

Although plea bargaining has not been openly recognized or sanctioned by most courts, it has become quite widespread and effective. Due to this lack of formal recognition, no uniform plea bargaining procedure has been developed, but generally, an accused is encouraged to plead guilty in exchange for some concession, the most familiar being a promise by the prosecutor to ask the court for leniency. Such concession is far from being the only "reward" offered by the state; indeed, if it were the only one, the practice would not have flourished as it has. Depending upon the particular laws of the …

Right To Hearing Upon Extension Of Probation

University of Richmond Law Review

Aside from the fact that its use was originally limited and random in nature, the historical origin of the probation process is uncertain. Revolutionary changes in the theories controlling the treatment of convicted criminals, however, has resulted in the development of probation into the most widely used form of correctional treatment.

Drugs- Quantity Of Possession Of A Narcotic Necessary For Conviction

University of Richmond Law Review

Most of the states make it unlawful for a person to possess a narcotic drug unless authorized under the narcotic drug statutes. Most jurisdictions have adopted the Uniform Narcotic Drug Act with various amendments." Yet in those states in which the UNDA is not in force, the corresponding laws are nearly identical. Generally, the statutes specify that it is unlawful to possess "any narcotic drug." This phrase is considered by most jurisdictions to specify that any amount, even the slightest trace, is sufficient for a conviction, while other states require that a "usable quantity" must be present.

Possession Of Narcotic Drugs

University of Richmond Law Review

Possession of narcotic drugs, including marijuana, is deemed illegal in Virginia by statute. The concept of possession has been a major contro- versy in criminal proceedings in Virginia and other states. Generally, legal possession has meant the holding of property in one's own power or command. There may be either an actual physical holding, which consists of the power to control the property plus the intent to control the property, or constructive possession, where there is an absence of actual physical control, but a capacity to control along with the intent to control such property.

Cruel And Unusual Punishment-Constitutionality Of The Death Penalty For Rape Where Victim's Life Neither Taken Nor Endangered

University of Richmond Law Review

Throughout history societies have attempted to influence behavior and maintain order through the use of sanctions imposed by custom, tradition and law. Various methods and degrees of punishment have been exacted for anti-social behavior; each individual society fixing its own value upon the interest to be protected and its interest in punishing the offender. Some civilizations have utilized torture, maiming and, not infrequently, cruel and painful deaths as punishment for crimes.

Recent Legislation

University of Richmond Law Review

This is a list of the recent legislation from 1970.

Law And Anarchy, Sidney Hook

University of Richmond Law Review

I wish to consider certain views and attitudes about law and government that seem widely held today, that encourage contempt for law and at least indirectly bear on current political behavior.