My desk at the end of the day.
If the jury finds that he is guilty, it then "ascertains" or "fixes" the maximum punishment in accordance with contemporary community values and within the limits established by law.This interpretation of the law was immediately problematic in that there is absolutely nothing in the statute that states the jury is setting a "maximum punishment." Thus, Duncan does not follow the statute and invites us to lie every time we instruct a jury that they are going to determine the punishment.1 Duncan's departure from the actual language of the statute is necessary because in all felonies class 4 and above there are sentences which a jury must impose that a judge could suspend (and usually would in part). This raises a constitutional denial of jury trial issue which had to be addressed. However, faced with the option of giving jurors the ability to impose the same sentencing incarceration ranges2 as judges or develop a byzantine dual sentencing system, Virginia chose the latter.
. . .
By vesting the trial court with discretionary authority to suspend or modify the sentence imposed by the jury, the legislature intended to leave the consideration of mitigating circumstances to the court.
Duncan v. Commonwealth, 1986, Va. App., No. 0274-85.
After a finding of guilty, sentence shall be pronounced, or decision to suspend the imposition of sentence shall be announced, without unreasonable delay.However, he is also required to receive a presentence report before imposing the sentence. This report is to contain no less than "the defendant's criminal history, any history of substance abuse, any physical or health-related problems as may be pertinent, and any applicable sentencing guideline worksheets". More can be included, but the statute isn't clear as to what else is required. The judge shall "direct a probation officer of such court to thoroughly investigate and report upon the history of the accused." This has developed into a standardized format which has academic, job, military service, family histories, &cetera along with the minimum information required. These histories are a list of schools, list of jobs, notification of time spent in the military, and a list of family members. In addition to all this, a Victim Impact Statement is also required.
The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall . . . be given the right to cross-examine the investigating officer as to any matter contained therein and to present any additional facts bearing upon the matter.So, if the report states that the defendant has two children he could cross the probation officer about that and bring the mother of child three in to testify as to the child's existence, age, and relationship to the defendant.
Failure to consider whether a jury sentence should be mitigated because of a belief that the jury sentence is inviolable is an abuse of discretion.Finally, "[b]efore pronouncing the sentence, the court shall inquire of the accused if he desires to make a statement and if he desires to advance any reason why judgment should not be pronounced against him." After any such statement (assuming he's not persuaded), the judge pronounces the sentence.
Bruce v. Commonwealth, 1990, Va. App., No. 0504-88-2
(c) Plea Agreement Procedure.This language clearly forecloses the use of statements made by a defendant during plea negotiations from being used in the prosecutor's case in chief. But see Hood v. Commonwealth, Va, 2005, No. 040774 (can be used to impeach, rebut, & cross examine) & Ayla v. Aggresive Towing, Va, 2008, No. 071451 (unwithdrawn plea may be used against 3d party witness). However, the language also seems purposefully ambiguous. It could be restricted to only defendants if only written slightly differently
(5) Except as otherwise provided by law, evidence . . . of an offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing  offers, is not admissible in the case-in-chief in any civil or criminal proceeding against the person who made the  offer.
(5) Except as otherwise provided by law, evidence . . . of aThe failure to denominate one party for whom the protection exists seems to indicate that this Rule was meant to apply to both sides, that "offer to plead guilty" simply means a plea offer proffered by either side, and that both sides are forbidden to talk about plea offers in their case at chief. There's no other explanation for not simply stating this is a protection for a defendant. As a practical matter, I'm not sure the prosecution would often need this protection during the defendant's case in chief.
ndefendant's offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing  offers, is not admissible in the case-in-chief in any civil or criminal proceeding against the person who made the  offerdefendant.
The kind of evidence contemplated by § 19.2-295.1 bears upon the record of the defendant and the nature of his crime. Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime is admissible mitigating evidence.It seems unlikely that a defendant would be able to fit a statement made by the prosecution during failed plea negotiations under either his record or the nature of his crime. However, 19.2-295.1 allows the prosecution to introduce "relevant, admissible evidence in rebuttal." Per this section of the statute, if the defendant got on the stand and testified "Bob" did it all any statements he made during plea negotiations which contradicted that would be available to rebut his statement.
In any such discussions under this Rule, the court shall not participate.As long as both sides stick to trying to convince the judge as to what an appropriate sentence would be, the hearing should be okay. However, the second the parties start talking about statements made during the plea negotiations they are effectively turning the judicial sentencing hearing into an extension of the plea negotiation in which the Court is forbidden to participate. It can be argued that even a regular judicial hearing would be an extension of the plea negotiation, just without open discussion of the failed plea negotiations. However, in that case all judicial sentencing hearings in which either side provided evidence would be invalid under 3A:8(1). It's logical, but it assumes that some sort of plea negotiation took place. In a hearing wherein one of the parties tries to introduce statements from plea negotiations there is no assumption.. In such a case I think the judge is required to stop the party as soon as he realizes what is going on and require the party to not discuss the plea negotiations in the hearing.
§ 19.2-187.1. Right to examine person performing analysis or involved in chain of custody.I these changes would make the "demand" part of the close to bulletproof and keep the gamesmanship to a minimum.
The accused in any hearing or trial in which a certificate of analysis
ismay be admitted into evidence pursuant to § 19.2-187 or § 19.2-187.01shall have the right to require the Commonwealth to call the person performing such analysis or examination or involved in the chain of custody as a witness therein , and examine him in the same manner as if he had been called as an adverse witness. If the accused does not notify the trial court and Commonwealth of the requirement prior to the trial date he waives his right to require the person's presence at trial.
Such witness shall be summoned by and appear at the cost of the Commonwealth. Unless waived by the Commonwealth, the Commonwealth shall have no less than 30 days from the date of notification by the accused to subpoena and bring the person to court.