9.16 Trial

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.16 TRIAL

9.1601 Opening Statement. The Virginia Code gives counsel for both sides in a felony or misdemeanor trial the right to make an opening statement. ⁶³¹ The opening statement is made before any evidence is submitted

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by either side. Thus, when the statute is read literally, if defense counsel chooses not to make an opening statement before the Commonwealth's submission of evidence, he or she has arguably waived his or her right to make any opening statement, unless counsel has obtained special permission of the court to make the statement immediately before presentation of the defense evidence. Opening statements by counsel are not evidence.

9.1602 Commonwealth's Case-in-Chief. Although the Commonwealth has the ultimate burden to prove every element of the offense beyond a reasonable doubt, ⁶³² after its case-in-chief, it must have presented sufficient evidence to establish a prima facie case of the defendant's guilt to overcome the defendant's motion to strike the evidence. If the defendant presents no evidence, the Commonwealth's evidence as presented in its case-in-chief must then be sufficient to prove the defendant's guilt beyond a reasonable doubt.

9.1603 Motion to Strike the Evidence by Defendant. After the Commonwealth rests its case or at the conclusion of all the evidence, the court, on the motion of the accused, may strike the Commonwealth's evidence if the evidence is insufficient as a matter of law to sustain a conviction. ⁶³³ If the court does not sustain a defense motion to strike at the end of the Commonwealth's case, the motion should be renewed at the end of the defendant's case to preserve the motion. ⁶³⁴ The renewal of the motion to strike is necessary even if the defendant presents no evidence. Generally, a trial court should strike the evidence only where the court would feel compelled to set aside any verdict found in accordance with it. In order for the court to strike the Commonwealth's evidence, it must be able to logically eliminate every reasonable hypothesis consistent with the defendant's guilt based upon the evidence presented.

If the court sustains a motion to strike the Commonwealth's evidence in a case being tried by a jury, the court may discharge the jury and enter a judgment of acquittal. ⁶³⁵ If the court overrules a motion to strike the evidence and there is a hung jury, the defendant may renew the motion immediately after the discharge of the jury, and if the court believes that it erred in

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