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FROM ARREST TO TRIAL

Virginia Criminal Court Process in a Nutshell

By: Buta Biberaj & Matthew Snow

Let's face it.  The Courts can be a confusing place.  And when you are facing a criminal charge, DUI or traffic case, your stress level is already high enough.  At Biberaj & Snow, PC, our lawyers find that the best clients are the ones who take the time to be fully informed about the court process and can thus made smart, educated decisions.

With that idea in mind, this article sets forth an outline of the Virginia Criminal Justice System, from arrest to trial and beyond.  While this primer doesn't cover every possibility, it will educate you about the basic structure of our local courts and each of the major steps involved in the criminal justice process.  Read this primer, and then you will be in the best position to work with your lawyer to get a good outcome in your criminal, dui or traffic case - whether that case is here in Loudoun County or anywhere else.

The Virginia Criminal Justice System

    CRIMES
  • Misdemeanor - A crime punishable by up to 12 months in Jail. Misdemeanor cases generally begin and conclude in General District Court, but in some situations may be resolved in Circuit Court.
  • Felony - A crime which is punishable by one year or more in State Prison.  Felonies generally begin in General District Court, where a preliminary hearing is held.  Felonies then proceed to Circuit Court where they are resolved.

    ATTORNEYS
  • Commonwealth's Attorney - The local prosecutor. The “CA” represents the Commonwealth of Virginia and is the attorney responsible for prosecuting a criminal case/charge against a criminal defendant.
  • Defense Attorney - Represents the accused (defendant) in a criminal case.
  • Private Attorney - You may hire (retain) your own attorney at any time, regardless of how far along your case may have progressed in the criminal process. However, it is generally best to retain an attorney when you first learn that there may be an investigation.
  • Court Appointed Attorney - Once you’ve been charged, you may request to be represented by a court appointed attorney (either a public defender or a private attorney picked by the judge) if you can not afford to hire private counsel.  You must fill out a financial form (under oath) and appear before a judge in order to request that the Court appoint an attorney to represent you. The Court will appoint an attorney to represent you if the judge finds that you are financially eligible. If you are found "Not Guilty" at the conclusion of your case, then you will not owe any money to the Commonwealth for giving you an attorney. However, if you are found "Guilty" of a charge at the conclusion of your case, then you will be responsible for paying the Commonwealth back for costs of an appointed attorney. Note: A court appointed attorney will be paid the same  regardless of whether you win or lose your case.

    THE COURTS
  • District Court - The entry level court in the Virginia Criminal Justice System (This includes "Traffic Court"). When an individual is arrested based upon a warrant, his/her first court appearance will be in the District Court. The District Court is a court “not of record” which means that the hearings are not recorded nor transcribed; nor are there any juries in District Court. The District Court handles misdemeanor offenses and the initial proceedings in felony offenses (preliminary hearings).
  • Juvenile & Domestic Relations Court - The special District Court that handles cases where a juvenile (under age 18) is either the victim or the defendant, or where families are involved (such as domestic assault & battery). The “J&DR” Court functions in largely the same manner and method as the General District Court, with some exceptions. For example, the J&DR Court uses different terms for things: “Adjudication” instead of Trial; “Disposition” instead of Sentence; “Delinquent” instead of Guilty. Additionally, nearly all juvenile cases require the involvement of a juvenile probation officer to supervise the juvenile and monitor compliance with any court imposed requirements.
    A juvenile’s court records are confidential and privileged (with exceptions for probation officers, law enforcement, court personnel, the minor, and parents of the minor or their attorney.)
  • Circuit Court - The principal trial level court in the Virginia Criminal Justice System. The Circuit Court is a “court of record” which means all hearings are recorded or transcribed. It handles felony cases and misdemeanor appeals. The Circuit Court is the only court where a defendant can have a jury trial. Criminal cases are generally initiated in the Circuit Court by “indictment.” Most citizens should not undertake a trial in Circuit Court without the assistance of an attorney.

    THE ARREST PROCESS

  • Arrest - Arrests must be based on probable cause. While there is no simple test to define probable cause, the police must rely on what they believe to be good information and not mere suspicion. Arrests for a misdemeanor offense can only be made for crimes which occur in the presence of the person making the arrest, or with a warrant.
  • Summons - Certain minor misdemeanor charges do not require that an officer make an arrest. Instead a summons can be issued by the officer, which is similar to receiving a traffic ticket. Signing the summons does not indicate you are guilty; rather it just shows that you received a copy of the summons. The summons will contain a court date and time at which you must appear in court to address the charge(s).
  • Booking - The post-arrest process of gathering information about an arrested person. While going through the booking process, the following should be expected: photographs, fingerprints, a search of your person and belongings, and routine questions on background information (name, address, etc.).
    If your case begins with a court appearance and not an arrest, you may still be required to appear at the police station for a book-and-release procedure.
    Most jails will give out booking information (arrest date, bail, visiting information, location, court date, charges and booking number). Generally, you'll be asked for the defendant's full name and date of birth. Keep the booking number for future reference.
  • Police Reports - The law does not require the police to release their reports. However, in some instances your attorney may be able to speak directly to the investigating officer for information on the evidence supporting the arrest and the nature of the charges.
  • Magistrates - A Magistrate is a judicial official whom an individual is brought in front of upon arrest. A Magistrate has the authority to issue arrest warrants based upon the sworn complaint of a citizen or law enforcement officer. The Magistrate makes decisions regarding what charge(s) to file against an individual and what type of bail/bond to set for an arrested person.
  • Charging Decision - Typically, the Magistrate makes the initial decision as to what charge(s) to file against an individual who has been arrested. A Magistrate can issue a charge based upon information from the police or a private citizen as long as the information provided to the magistrate is sworn to and gives the magistrate “probable cause” (a good reason) to believe that a crime was committed.
    A Commonwealth Attorney also has the power to issue or change charges, which they may do so at a later date.
    A “victim” cannot “drop” a charge after it has been filed – however, a “victim” can influence the Commonwealth Attorney’s decisions in a case. In most cases, the Commonwealth’s Attorney is required by law to consult with the victim prior to the final resolution of the case.  Direct contact between a defendant and a “victim” after a charge has been filed is not recommended.  If you have any question about this, you should speak with an attorney.
  • Bail / Bond - The terms “Bail” and “Bond” are often used interchangeably. Bail is the money or conditions required for an individual to gain pretrial release from custody (jail). Bond is a surety agreement that guarantees that the defendant will appear in Court.
    Bail / Bond is initially set by the Magistrate after arrest. A District or Circuit Court Judge has the power to modify an individual’s bond at a later time if they see fit. Bail reduction motions can first be made at the arraignment, but usually require a minimum of 24 hours written notice to the Court and Commonwealth. There are also other (but limited) opportunities to bring a motion to reduce bail.
    Bail is made with cash or a corporate surety bond, and is typically posted via the Magistrate.  If a bond is paid in full and in cash, then it will be returned in full at the conclusion of the case (assuming the defendant makes all the court dates and does not violate any pre-trial release conditions set by the Court.) A corporate surety bond typically requires the services of a bondsman.
  • Bondsmen / Bonding Companies - Private companies or individuals who are licensed to issue corporate surety bonds. Most bondsmen typically charge 10% of the face amount of the bail / bond as a fee, plus require some form of collateral to guarantee the defendant will return to court. In exchange, the bondsman will post the corporate surety bond required for the defendant’s pre-trial release from jail. The bondman's fee will not be returned regardless of the case outcome.
  • Pre-Trial Supervision Services - In some situations, a judge or magistrate may require that a defendant be supervised by the Pre-Trial Services Office when that defendant has been released from custody before trial. This supervision is similar to pre-trial ‘probation,’ wherein a defendant is monitored for compliance with any bail conditions set by the court. The obligation to contact and stay in touch with a Pre-Trial Officer rests with the defendant.
    Typical conditions subject to monitoring include drug/alcohol testing, verification of employment and monitoring for new criminal charges while on bond. If non-compliance with any condition is reported to the Court by the Pre-Trial Supervision Officer, the Court may revoke the defendant’s bond and hold the person in jail until trial.

    IN THE COURTROOM

  • Judge - The judge is the most important person in the courtroom. A judge is empowered to decide cases and give out punishment for conduct that is determined to be in violation of the law. One should always be respectful and pay attention to what the judge says. Although a person before the court may ask reasonable questions of the judge, the judge cannot give legal advice.
  • Attorneys - Lawyers who are trained and educated in the field of law and who are licensed by the state to practice law in its courts.
  • Police Officer - In criminal and traffic cases, the arresting or investigating officer will be present in court to testify about the facts and circumstances of an alleged offense. (Note: It is not necessarily true that a case will automatically be dismissed if the officer is not present in court.)
  • Bailiff - A Sheriff’s Deputy who is responsible for Court security. The bailiff may be in full uniform or in a brown jacket with a tie. A bailiff is a fully empowered law enforcement officer with the authority to arrest individuals in the courtroom if his/her instructions are not followed, or as directed by the judge.
  • Clerk -  A court clerk assists the judge with the paperwork required for each case. A clerk typically sits in the courtroom to one side of the judge.
  • Court Reporter - A person who records and transcribes every word that is said in court during a felony trial.
  • Interpreter - Provided to translate for persons who do not speak English. Interpreters may not give legal advice and must translate what is said word for word. Spanish interpreters are usually available in each courtroom; however, arrangements for other language interpreters should be made with the Court in advance.
  • Your Behavior in Court - A trial in any court is a serious matter. All judges should be addressed as “Your Honor.” Since you want to be listened to and treated with respect, you should dress in a neat, clean and dignified way, and behave in a respectful manner. You may not bring food or drink into a courtroom, and you may not carry on conversation with other people in the courtroom, read books or behave disruptively.

    THE CASE

  • Docket - The schedule of cases for the day; it tells you in which courtroom your case will be heard. Docket sheets are usually posted outside of each courtroom or at a central location and are arranged by time and then alphabetically. Do not assume that your case will always be heard in the same courtroom.
  • Arraignment - The court appearance where the defendant is formally advised of the charge(s) and of his/her right to an attorney. The Court will also typically schedule the trial date at that time. At this court appearance it is permissible, although highly unusual for the Court to inquire as to how the defendant intends to plead to the charge(s). If a defendant is unsure of how to plead, the Court will typically enter a “Not Guilty” plea for the defendant and schedule the case for a trial. (Note: For minor traffic infractions, there generally is no arraignment date; rather, the first court appearance is the trial date.)
  • Failure to Appear - It is a crime and contempt of court to willfully fail to appear for court after having been given lawful notice to do so. When a defendant fails to appear for a court appearance, the judge may convict the person in their absence, issue an arrest warrant (a “capias”), a summons (a “rule to show cause”), and/or revoke the defendant’s bond and hold the defendant in jail until the next court date.
  • Discovery - Information that is required to be shared between the Prosecution and the Defense Attorney. Discovery rights in Virginia are very limited. At the General District Court level, a defendant is only entitled to any statements made by the defendant to a law enforcement officer, and the defendant’s criminal record. At the Circuit Court level, discovery rights expand somewhat to include the right to inspect or examine physical evidence and scientific reports or analyses.
  • Witnesses - If you need witnesses to support your side of the case, you must arrange for them to appear in court with you. A written statement by a witness, even a notarized one, is not an acceptable alternative. You can request that the court issue a subpoena to require a person to appear as a witness, but this must be done at least 10 days before trial.
  • Subpoena - A Court Order requiring the named individual (usually a witness) to appear in Court. Ignoring the subpoena or refusing to appear is a criminal violation of the Court Order and may result in the named individual being arrested and held in jail for contempt of court.
  • Preliminary Hearing - Preliminary hearings only occur in felony cases, and are only heard by the General District Court. The purpose of the preliminary hearing is for the judge to determine whether or not there is probable cause to send a case to Circuit Court for trial. (A General District Court does not have the authority to resolve felony charges.) Probable cause is usually very simple for the prosecution to prove, because their burden of proof is quite low. The preliminary hearing is often used by the defense to evaluate the prosecution's case.
  • Plea Bargaining - Plea bargaining is a process whereby the defense attorney negotiates with the prosecutor to obtain the best possible plea for his client. This process may include the prosecution charging the defendant with a lesser charge, or agreeing to a lesser punishment for the same charge in exchange for a guilty plea.
    A defendant is never required to accept an offered plea bargain; it is merely an alternative to trial that the defendant can consider if he or she chooses.
  • Grand Jury - This is the mechanism for the prosecution to have charges issued in Circuit Court. A Grand Jury is made of 7 local citizens who meet on a specified date. The Grand Jury meets in secret – its hearings are not open to the public, nor to the defense.  The prosecution, however, is allowed to present evidence of alleged crimes to the Grand Jury. If the members of the Grand Jury believe that there is probable cause that an offense was committed, then the Grand Jury issues a “true bill of indictment.” (This process achieves the same purpose as a preliminary hearing, except that it occurs in Circuit Court.)
  • Indictment - The term for a charge that is issued through the Grand Jury process in Circuit Court. It is similar to a warrant, except that it is issued by the Grand Jury instead of a Magistrate. Charges that are issued by indictment can be either felonies or misdemeanors.
  • Pre-Trial Motions - All motions (requests) that are made of the Court prior to the actual trial. Frequently these involve requests by either the defense or the prosecution to obtain additional information or to exclude evidence that was improperly obtained by law enforcement.
  • Speedy Trial - Constitutional right of a defendant to have a trial heard within a short period of time. Charges must be dismissed and the defendant released if the speedy trial period expires without trial. The period is 5 months if the defendant is in custody while awaiting trial; the period is 9 months if the defendant is free on bond while awaiting trial. However, in some cases, a defendant may choose waive this right in order to have more time to prepare for trial.
  • Trial - The presentation of witnesses, testimony and evidence by the prosecution and the defense to a judge or jury, who will ultimately decide the result of the case. Each side is entitled to an Opening Statement by his/her attorney, which is limited to an outline of what each side intends to prove. The prosecution gets to present the Commonwealth’s evidence first. Once it has concluded, the defense gets to present its own evidence. The prosecution has the right to present rebuttal (reply) evidence after the defense, if it so chooses.  At the conclusion of all evidence each attorney gets to make a closing argument.
  • Bench Trial - A trial where the decision is made only by a judge.
  • Jury Trial - A trial where the decision is made by members of the community who are selected to hear the case.  A defendant in a criminal case has a Constitutional right to be tried by a jury, if s/he so chooses. The Commonwealth also has the right to ask for a trial by jury. A jury trial begins with the selection of a jury.  A jury “pool” is made up of 30 to 40 members of the community who are brought into court. Each side gets to ask questions of the potential jurors related to the issue of whether they can be fair and impartial. Jurors with conflicts or who exhibit signs of obvious bias or prejudice may be removed by the court. Each side will then be permitted a certain number of “peremptory strikes,” which is the ability to remove individuals from the jury pool without having to give a reason. (However, it is improper to remove someone from a jury pool based solely on race or gender.) Once the number of potential jurors is reduced to the right number (12 for a felony; 7 for a misdemeanor), the jury is seated in the jury box, and the trial begins.
    Before the closing arguments, the judge will give the jury a series of instructions about what the rules of law are that the jury must follow in deciding the case. Then, after the closing arguments, the jury goes back to the Jury Room to begin “deliberations” and decide the case. A jury’s verdict must be unanimous, one way or the other.  If the result is a guilty verdict, then a second phase of the trial will be held in which evidence related to sentencing and punishment will be presented to the jury. In Virginia , although a jury will make a recommendation as to the punishment, the exact punishment will be determined by the judge at a hearing held at a later time.
    In Virginia, there are no jury trials in General District Court; only in Circuit Court.
  • Sentencing - If a Guilty finding is made in a case, by trial or by plea, both sides are entitled to present sentencing evidence and argument to the Court. It can be just like a trial, with opening and closing statements, evidence and testimony, all presented for the judge or jury to hear and consider in determining what the appropriate punishment should be. See “Sentence” below for more information.

    THE OUTCOMES

  • Dismissal - A formal ending of a case wherein the court finds insufficient facts to support a conviction, or otherwise finds a basis to end the case. The charge may not be re-initiated.
  • Nolle Prosequi (“Null Prosse”) - Means “not prosecute” in Latin. Similar to a dismissal, however, the same case can be brought back or re-initiated at a later time. A prosecutor may request a “nolle prosse” when the evidence is insufficient or if a necessary witness fails to appear.
  • Not Guilty - A formal finding by the Court dismissing the charge(s) based upon insufficient evidence to support the charge.
  • Guilty - A formal finding by the Court where the defendant is convicted of the charge(s). Must be based upon a finding of proof beyond a reasonable doubt that the defendant did in fact commit the alleged offense(s).
  • Deferred Finding - A decision by the Court that although there is enough evidence to support a Guilty finding, the Court will postpone / defer an actual decision on the “Guilt” of the defendant for a period of time. During that period the defendant is often placed on probation and required to abide by certain conditions. If the defendant follows all the conditions, the charge may be dismissed by the Court. But, if the defendant does not follow all the conditions, then the Court may choose to find the defendant “Guilty” and record the conviction.
    (Virginia law limits the type of charges where the Court can do this; it is typically only allowed for certain first time offenses. Consult with your attorney to find out more.)
  • Mistrial - The termination of a trial before its normal conclusion because of a procedural error, improper activity during the trial that prejudices a jury, inability of the jury to reach a unanimous verdict (deadlocked or "hung" jury), or the failure to complete a trial within the time set by the court.  When such situations arise, the judge, either on his own initiative or upon the motion (request) of one of the parties will "declare a mistrial," dismiss the jury if there is one and direct that the case be set for trial again, starting from the beginning.
  • Sentence - The punishment a defendant receives from the court upon a guilty conviction.
  • Jury Sentence – At the conclusion of a jury trial, the jury will render a verdict as to what the sentence should be. However, this only acts as a recommendation to the judge, who will determine the final sentence. A judge cannot exceed a jury’s recommended sentence, but may go below the jury’s recommendation by suspending all or a portion of the recommended sentence.
  • Judge Sentence – The final sentence in a case, determined by the judge. In making this determination, a judge is required to consult a defendant’s sentencing guidelines. However, a judge is free to go outside the guidelines and sentence a defendant to any sentence permitted under the law.
  • Sentencing Guidelines – A range of recommended punishment which a judge must consult prior to imposing any felony sentence in Virginia . An individual scores “points” based upon prior criminal history and the conviction s/he is being sentenced for. The number of points corresponds to a recommended range of punishment.  Typcially, the more points, the higher the recommended sentence. Although a judge is permitted to go higher or lower than the guidelines, if the judge does so, then s/he must provide a reason in writing for doing so.
  • Suspended Sentence - The portion of a sentence that is delayed / not imposed for a specified period of time. Usually a sentence is suspended on the condition that the individual successfully complete probation. If any conditions of the probation are violated during the suspension period, the Court has the power to revoke the suspension and impose the original sentence. However, if the conditions of the probation are met, then at the end of the suspension period the court may close the case without ever imposing the suspended sentence.

    THE PUNISHMENT

  • Fine - A monetary penalty assessed against a defendant.
  • Jail - “Jail” typically refers to incarceration for less than 1 year. Jails are a local form of incarceration and are typically operated by the County Sheriff ’s Department. There are some Regional Jails in Virginia which serve as the jail for several different counties, or house inmates for other over-crowded jails. The time that a defendant spends in jail before trial will be credited against the final sentence.
  • Prison - “Prison” typically refers to incarceration for more than 1 year. Also known as the ‘penitentiary,’ Virginia ’s prisons are run by the Virginia Department of Corrections. Upon receiving a prison sentence, an individual will typically be housed in a local jail for a few months and then transferred to a prison to serve out the balance of the sentence.
  • Probation - A period of court-ordered supervision, either following or in place of incarceration, wherein an individual’s activities and conduct are monitored by a probation officer. The probation officer supervises several aspects of the individual’s life, including things like requiring periodic drug testing, counseling, substance abuse treatment, and monitoring employment status and compliance with the law. Any violations are reported to the Court for appropriate action.
  • Parole - Abolished in Virginia. It used to mean early release from prison based upon good behavior, under terms and conditions similar to probation. Presently, an individual will serve a minimum of 85% of a felony sentence before being eligible for release.
  • ASAP - Virginia Alcohol Safety Action Program. An alcohol counseling program required by law for all individuals convicted of a DUI/DWI offense. Typically involves once per week classes/meetings for a 10 to 18 week period. Participants must pay a $375 enrollment fee, as well as fees for each weekly meeting. ASAP also acts as a form of probation, with the ability to report violations to the Court. Strict compliance with ASAP’s alcohol policies is required, and monitoring may continue past the end of the classes.
  • CCP - Community Corrections Program.  Equivalent to a probation office for misdemeanor charges. CCP administers counseling programs (substance abuse, anger management & sex offenders) and monitors convicted individuals for compliance with Court ordered conditions or requirements.

    POST-TRIAL MATTERS

  • Post-Trial Motions - Motions (requests) made by the defendant after the conclusion of the case.
    Motion for a New Trial – A request made by the defendant for the case to be tried again on the basis that there were significant legal errors in the way the trial was conducted and/or the jury or the judge obviously came to an incorrect result. This motion must be made within a few days after the judgment is formally entered and is usually heard by the same judge who presided at the trial. Such a motion is seldom granted unless there is some very clear error which any judge would recognize.
  • Appeal
    A request to a higher court to review a lower court’s decision. Strict timelines apply for filing an appeal.
  • From General District Court – In Virginia , a defendant has an automatic right to appeal to the Circuit Court from a General District Court decision. This results in a “trial de novo” which is a brand new trial in the Circuit Court. The appeal must be noted within 10 days of the General District Court’s decision.
  • From Circuit Court – A defendant does not have an automatic right of appeal from a Circuit Court decision, but rather must file a “petition” to an appellate court requesting that s/he be granted the right to pursue an appeal due to a legal error that occurred during the trial. The appeal must be noted within 90 days of the Circuit Court’s decision. If the right to proceed with the appeal is granted, then the defense attorney and an attorney for the Commonwealth submit lengthy written arguments to the appellate court in support of their positions. If the appellate court agrees that there was a legal error, then depending on the type of error the appellate court will send the case back to the trial court for a new trial, a new sentencing, or dismiss the case.
  • Expungement - This is an often misunderstood process.  Expungement is the civil process of erasing from a person’s criminal record the fact that the person was charged with a crime. In Virginia, this is only available if a) the case is dismissed, or b) the case is nolle prosequi'd.  if a person is convicted of a charge, then that charge can NEVER be expunged. 
    Note: If a person is charged with a crime and then the charge is dismissed, then the person's criminal record will show both the fact of arrest and then at a later date a dismissal of the same charge. A finding of Not Guilty or a Dismissal will not erase the fact that you were charged from your criminal record.  Only an expungement will cause a charge to not appear on a criminal background check.

    OTHER CONSEQUENCES

  • Any sentence imposed by the court may have a number of other consequences. These other consequences will depend on the type of conviction. They may include but are not limited to any of the following:
    -Immigration consequences (for non-citizens only)
    -Loss of the right to vote.
    -Loss of the right to possess a firearm of any kind.
    -Loss of the right to associate with known criminals.
    -Registration as a sex offender.
    -Increased penalties for future criminal convictions.

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Disclaimer: This article is intended for general interest only. It is not intended to be nor should it be deemed as legal advice. Please consult with one of our experienced lawyers at Biberaj & Snow for the best advice specific to your needs.