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Criminal Defenses in Virginia

In order to convict a defendant charged with a crime, the prosecution must prove the defendant guilty beyond a reasonable doubt. In the legal process, the defendant has an opportunity to raise a defense. Below are some of the common defenses that are frequently raised in criminal cases. However, they are not representative of the many defenses that could be presented, so it’s best to consult with an experienced trial attorney who can take on your case and construct a defense strategy that suits your unique situation. Find out what questions you should ask an attorney before hiring one.

Alibi
If you have been charged with an offense and you have evidence that you were in another location at the time of the crime with at least one eyewitness who can verify your whereabouts or other strong time-dated evidence, you could plead not guilty by reason of alibi. In the Commonwealth of Virginia you must give notice of alibi evidence prior to the trial under the discovery rules.

Duress
When you use duress as a defense, you admit to committing the act with which you are charged, but that you are not liable because you performed it under imminent threat. Raising a defense of duress admits partial culpability, but that force, false imprisonment, threats, torture, or psychological harm was used to compel you to act in a way that you would not normally act.

Entrapment
Entrapment occurs if the government or any of its agents (e.g. law enforcement) induce or persuade a person to commit a crime, and then tries to punish the person for committing the act. The defendant must not be predisposed to commit the crime without being persuaded by the government agent. If you raise entrapment as a defense, most jurisdictions will allow evidence of defendant’s past conduct – including prior convictions, prior arrests, and information about one’s reputation and conduct – to be brought by the prosecution. Entrapment is a more difficult defense to mount if you have prior criminal convictions on your record.

An individual who purchases drugs from an undercover cop will not be successful in using entrapment as his or her defense because the government agent must play an active role in convincing the defendant to take part in the illegal act. In this instance, the government agent would be offering an opportunity to commit the crime, which is not the same as entrapment. A private citizen cannot entrap another private citizen; this would be considered criminal solicitation, which is an offense of its own.

Failure to be read one’s Miranda rights
Contrary to popular belief, the charges brought against you are unlikely to be dismissed if law enforcement fails to read you the Miranda warning. However, it does mean that the prosecution may not be able to use answers obtained during a police interrogation against you.

The first thing to do if you’re picked up for questioning or stopped on the street with regard to a criminal act is tell a police officer that you do not want to speak with him or her without an attorney present. Law enforcement is not required to read you the Miranda warning if you’re stopped on the street, but police officers are required to read you your rights if you’re picked up or brought in for questioning. There are many nuances to how the Miranda warning is used and whether it is lawful or not, so it’s best to consult with an attorney if you feel that you have been unlawfully arrested or questioned.

Insanity
The law prevents people who are deemed insane from being punished in the same way that other criminals are punished, because people suffering from mental illnesses to the point of insanity may be unable to conform their behavior. In Virginia, the defendant must show that because of a mental illness and at the time of the offense he or she:

  • Did not understand the nature, character, and consequences of the act, or
  • Was unable to distinguish right from wrong, or
  • Was driven by an irresistible impulse to commit the act

This is a combination of the M’Naghten and irresistible impulse insanity tests that are also commonly used in other states to determine insanity. In Virginia, the insanity defense is infrequently used and rarely successful.

Self-defense
If you’ve been charged with a violent crime like assault, battery, malicious or unlawful wounding, homicide (manslaughter or murder), or domestic violence, you may be able to present self-defense. This means that you admit to committing the act of violence, but you were attacked or being threatened by the other person involved in the altercation. In Virginia, the amount of force you use to defend yourself must be reasonable and not excessive compared to the perceived threat; that means you cannot shoot someone for throwing a bottle at you and call it self-defense. Courts in Virginia view self-defense in murder cases as an affirmative defense for which the burden of proof falls on the defendant to prove that the offense was committed as a result of imminent threat. The other person’s history of violence is admissible to support the defense.

You cannot use deadly force to defend property in Virginia – only to defend a person.

Statute of limitations
If you’ve been charged with a crime, there’s a set time frame for when legal proceedings must begin. This is called a statute of limitations, and it usually begins as soon as the offense occurs. In Virginia, there are different statutes of limitations depending on the offense with which you’ve been charged. Typically the statute of limitations for criminal misdemeanors is one (1) year, per Virginia Code Section 19.2-8. Two notable exceptions are petit larceny, which has a statute of limitations of five (5) years, and unlawful abortion, which has a statute of limitations of two (2) years.

There is no statute of limitations for felonies, which means you can be prosecuted for a felony committed in the Commonwealth of Virginia indefinitely. The same goes for federal crimes punishable by death, certain federal crimes of terrorism, and certain federal sex offenses. Most other federal crimes have statutes of limitations of five (5) years.

Unlawful search and seizure
Under the Fourth and Fourteenth Amendments of the U.S. Constitution, you have a right to be free from unreasonable searches and seizures. Unlike the Miranda warning, law enforcement is not required to tell you that you have the right to refuse an illegal search. In Virginia, you have the following rights:

  • You cannot be pulled over without reason.
  • You are not required to take a field sobriety test.
  • You cannot be arrested or held in custody without probable cause.
  • You cannot be searched for drugs or weapons without probable cause.

You are not required to stop for or speak to the police unless they have an articulable suspicion of criminal behavior.

Your home cannot be searched without a search warrant issued by a judge, but cars have fewer Fourth Amendment protections. For example, if the police smell marijuana in your car’s glove compartment during a legal traffic stop of any sort, they have probable cause to search your glove compartment for marijuana. There are a few exceptions to these rights that a knowledgeable attorney would go over with you.

An unconstitutional search or seizure may result in your case being dismissed. Evidence seized unlawfully and in violation of your constitutional rights can be suppressed and labeled inadmissible prior to trial.

Unreliable witness testimony and eyewitness misidentification
If the prosecution brings a witness who is unreliable, you may use this as part of the defense. Eyewitness misidentification is particularly unreliable because the human mind is faulty at recalling events and people in an objective manner. A witness may also be unreliable because of alcohol or drug abuse or a motive to misrepresent information; this is especially a concern in drug-related cases where someone may be involved in the crime.