Virginians: Wear your Gang Color Necklaces Safely

The Virgina Supreme Court has come down on the side of accessories in Rushing v. Commonwealth, (Va., No. 111569, 6/7/12) by deciding that the fact that a defendant wore a necklace with black and blue beads should not have been admitted into evidence as to the defendant's membership in a gang.

This makes sense. I'm wearing a black and blue necklace at the moment, although mine is to show my affinity with House Ravenclaw and not any gang membership. If a necklace is enough to show affiliation the risk is that many people could be convicted who were otherwise innocent.

On the other hand, it isn't as if gangs necessarily hand out membership cards and t-shirts or that they keep official membership directories. If the wearing of a necklace in gang colors can't be used, then what will be considered strong enough evidence?

From a pure statutory interpretation standpoint the Prosecution probably didn't even need to show that the defendant was actually in a gang. From Va. Code § 18.2-46.2

Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. However, if such participant in or member of a criminal street gang is age eighteen years or older and knows or has reason to know that such criminal street gang also includes a juvenile member or participant, he shall be guilty of a Class 4 felony.

Membership and Active Participation are two separate factors and the prosecution can prove either one. If "he wears beads" was your evidence of membership it seems that it would be stronger to focus on showing that he actively participates in a criminal street gang. Assuming that the State was able to prove the additional element of a "predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang" (and because the ruling focused on the membership aspect I think this is a fair assumption) it would seem that showing that he was an active participant in gang activities, which is enough to meet the statutory requirements even without showing membership.