Virginia Criminal Law Case Outline-Defenses

The following is an outline of Virginia criminal case law related to defenses (and a subsection related to juvenile specific case law).  It is copied from the Defenses section of an outline maintained by Richard Collins, an attorney at Collins & Hyman, PLC. Because Mr. Collins created the outline for his own reference, rather than for publication, the outline contains many abbreviations.  Questions regarding the abbreviations, or case cites, can be sent to



Affirmative Defenses


Tart (COA, published July 15, 2008)- An affirmative defense raises a separate issue which may carry a separate burden of proof.  It is well settled that a criminal defendant may be required to bear all or part of the burden in establishing an affirmative defense once the facts constituting the crime are established beyond a reasonable doubt.  In Virginia, a criminal defendant typically bears the burden of “producing evidence in support of [an affirmative defense] sufficient to raise a reasonable doubt of [his or her] guilt.”  A defendant may shoulder this burden of production by pointing to evidence adduced during the government’s case, by introducing evidence to his own behoof, by relying on some combination of the foregoing, or otherwise by reference to any probative material in the record.  However, once the defendant meets that burden, the Commonwealth, retaining the ultimate burden of persuasion, may be required to disprove the defense.


Foley, COA, published, March 25, 2014.  Summarizes when a party has the burden of persuasion to establish an affirmative defense.




Cooper, VSC, published February 27, 2009- D relied on an alibi defense in a PWID jury trial.  D proffered a model jury instruction for an alibi defense:  “The defendant relies upon the defense that he was not present at the time and place the alleged offense was committed. If, after consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time and place the alleged offense was committed, you shall find him not guilty.”  The trial court refused to grant the instruction because the other instructions on reasonable doubt and presumption of innocence already covered that.

Initially, the VSC summarized a line of cases dealing with the nature of an alibi (whether or not it constituted a defense or whether it was just another piece of evidence to consider).  The Court concluded that alibi was a defense, and the trial court should grant an instruction when there is “evidence that the accused was elsewhere than at the scene of the crime at the exact time or for the entire period during which it was or could have been committed.”


Claim of Right


Groves (published June 19, 2007)- evidence sufficient for false pretenses conviction where D made unauthorized transactions using ex-H’s debit card for personal expenses and no claim of right defense available since D used car for personal expenses.  Claim of right requires D to have a good faith belief such that it negates the mens rea.




Morgan (published July 10, 2007)- settled insanity defense unavailable where alleged insanity resulting from long-term substance abuse was not permanent.  Furthermore, it is constitutional to require the D to carry the burden of persuasion with respect to his insanity.




Saunders, VSC, published March 4, 2011.  D convicted as an adult while a juvenile of charges committed after the offenses at issue in this case but before this case went to trial.  Issue was whether jury could sentence him.  Court held that jury could sentence him because he was considered an adult due to the earlier adult adjudication.


Conkling, 45 Va. App. 518 (2005)- the primary purpose of the juvenile justice system in Virginia remains unchanged. “[J]uvenile proceedings are corrective in nature rather than penal…. The primary function of the juvenile courts is not conviction or punishment for crime; but crime prevention and juvenile rehabilitation.” Kiracofe v. Commonwealth, 198 Va. 833, 844, 97 S.E.2d 14, 21 (1957). In the recently decided case of Roper v. Simmons, ___ U.S. ___, 125 S.Ct. 1183161 L.Ed.2d 1 (2005), the United States Supreme Court emphasized three traditional reasons for treating juvenile offenders differently than their adult counterparts: 1) an understandable lack of maturity and underdeveloped sense of responsibility in juveniles, often resulting in “impetuous and ill-considered actions and decisions,” 2) the heightened susceptibility and vulnerability of juveniles to “negative influences and outside pressures, including peer pressure,” and 3) the fact that the character and personality traits of juveniles are not as well formed, and more transitory than those of adults. Roper, ___ U.S. at ___, 125 S.Ct. at 1195 (internal citations omitted).


Reasonable Reliance


Miller, 25 Va. App. 727 (1997)- PO incorrectly told D, a felon, that he could possess a muzzle loading firearm.  D was entitled to assert the defense because he was affirmatively told he could possess it and it came from a public officer with “responsibility for defining permissible conduct” for the “offense at issue.”


Self Defense


Caison (COA, published July 29, 2008)- Manslaughter case where V started fight and when D ran, pursued D.  When V caught up, fights ensued, during which D stabbed V four times.  D claimed self defense.  A D claiming self defense implicitly admits the killing was intentional.  To justify the use of deadly force, D must have reasonably feared death or serious bodily injury from V, and there must have been an overt threat. The amount of force used must be reasonable in light of the harm threatened.  Furthermore, the right to self defense begins when the necessity begins and ends when it ends.


Cortez-Hernandez, COA, published April 5, 2011- discusses difference between excusable SD and justifiable SD.


Hines, VSC, published October 27, 2016.  Reiterates that homeowner (or tenant) has no duty to retreat when assaulted in his own home.


Carter, VSC, published June 22, 2017.  D sought to introduce the victim’s threats toward him, although he was not aware of them at the time of the shooting. “Evidence of a victim’s propensity for violence is relevant to determine “who was the aggressor or what was the reasonable apprehension of the defendant for his safety.” Workman v. Commonwealth, 272 Va. 633, 649, 636 S.E.2d 368, 377 (2006) (citation omitted). “Upon the question of who was the aggressor, the issue is what the victim probably did,” and such evidence is admissible even when the defendant is unaware of it. Id. (citations omitted).”

Court held that if exclusion was error, it was harmless error.

Carter also sought to introduce prior instances of violence by the victim.  “[W]here an accused adduces evidence that he acted in self-defense, evidence of specific acts is admissible to show the character of the decedent for turbulence and violence, even if the accused is unaware of such character.” Barnes v. Commonwealth, 214 Va. 24, 25, 197 S.E.2d 189, 190 (1973). Indeed, Virginia Rule of Evidence 2:404 provides that “evidence of a pertinent character trait or acts of violence by the victim of the crime offered by an accused who has adduced evidence of self-defense” is admissible.”  However, there must be a sufficient connection in time and circumstances.




Riley, VSC, published April 17, 2009- D maimed a woman after striking her with his car.  Evidence showed he’d overdosed on sleeping pills.  D presented expert testimony and lay witness testimony to demonstrate that he was sleepwalking at the time of the accident.  D argued that sleepwalking provided him with the affirmative defense of unconsciousness.

Unconsciousness is a state of mind of persons of sound mind suffering from some voluntary or involuntary agency rendering them unaware of their acts.  An earlier case stated that “where not self-induced, unconsciousness is a complete defense to a criminal homicide.”  Voluntary intoxication, however, is generally not an excuse for any crime.  “[T]he only exception to this general rule is in cases involving deliberate and premeditated murder.”  Since the circuit court did not make a factual finding on the sleepwalking issue, D failed to bear his burden and his defense was reduced, in effect, to voluntary intoxication.

Richard Collins is an attorney at Collins & Hyman, PLC, with offices in Williamsburg and Newport News.

The material in this post is for informational purposes only and should not be utilized as legal advice.  In order to properly analyze the contents as related to your specific circumstances, a consultation would be necessary.