Everyone should have a basic understanding and an abiding concern regarding the operation and functioning of our criminal justice system. All of our precious liberties and freedoms depend in large measure on the responsible, impartial, and consistent application of our criminal laws. “Equal justice under law” requires our ongoing commitment to fairness, impartiality, due process, and the intelligent pursuit of truth and justice. Fundamentally, it is the responsibility of each person to be aware of what occurs in the criminal justice system at all levels of government; and for each person to take an active role when called upon to participate as a witness or juror. Without responsible citizen participation, the chance of injustice is greater.  The criminal justice process is complex and subject to many rules, laws, regulations, and procedures.  This brief overview provides some general information* about the criminal justice process, with an emphasis on criminal justice in the Commonwealth of Virginia, United States of America. 

We live in a country of rules and laws that govern our conduct and behavior. Our criminal and traffic laws require or forbid certain actions or behavior. The consequence of violating a criminal law is punishment, including a loss of freedom and liberties. There are thousands of local, state, and federal criminal laws. A felony is a criminal law that provides for incarceration greater than one year and the payment of fines. Capital felonies can result in execution. In Virginia, felonies are classified by the amount of possible punishment. A misdemeanor is a criminal law that provides for possible incarceration of up to one year and the payment of fines. In Virginia, there are four classes of misdemeanors with varying degrees of punishment. A traffic infraction is a violation of law punishable by fine, loss of drivers license, or in some cases by incarceration.  The following is searchable data base of many Virginia Criminal Laws and laws pertaining to Virginia Criminal Procedure.  menu

Overview

The typical steps in criminal cases include the pre-arrest investigation by the police; the issuance of a summons, warrant or indictment; the formal arrest and booking process; the appearance before a magistrate and the setting of a bond; the initial appearance before a district judge and determining if the defendant will have an attorney; a preliminary hearing in felony cases when an arrest is by a warrant; review of indictments by a grand jury in felony cases; the scheduling of the trial; pretrial motions; arraignment and plea; the trial;  a sentencing hearing if found guilty; and thereafter the appeal process.  menu

Some Basic Rights

The following are a brief summary of some important constitutional protections afforded to all defendants.

RIGHT TO TRIAL BY JURY - A defendant generally has a right to a trial by a jury of their  peers. In felony cases, twelve (12) persons from a panel of twenty comprise a jury. In a misdemeanor case, seven (7) persons from a panel of thirteen makeup a jury. Sometimes, for anticipated long or complex trials, additional alternate jurors are selected in case jurors are excused during the trial. Jury trials are held in Circuit Courts. In felony cases, the defendant must consent to waive their right to jury trial. The judge or the prosecution also may elect to have a jury trial. The jury's decision must be unanimous. Each juror must find an defendant either guilty or not guilty. If the jury is unable to decide, an defendant may be retried. The jury determines punishment at a separate hearing. The court imposes punishment. An defendant has no right to a jury trial if they plead guilty. SEE JURY SERVICE ANSWER BOOK

RIGHT TO BE PRESENT THROUGH THE TRIAL - A defendant has a right to be present during all stages of  their  trial.   "During the trial" means that something is done which affects their defendants legal rights or interest.

RIGHT TO PUBLIC TRIAL - A defendant has a right to a public trial in an "open courtroom."  The trial is open to the free observation of all including the news media. A defendant may waive their right to a public trial in certain limited circumstances. This usually involves cases in the Juvenile and Domestic Relations Court.

RIGHT TO A SPEEDY TRIAL - A defendant has a right to a speedy trial. This right may explicitly or implicitly waived. Objections to speedy trial violations must be timely made or may be deemed waived.

RIGHT TO KNOW CHARGES - A defendant has the right to know the specific nature of the charges, and to know with reasonable certainty and definiteness the conduct prohibited or commanded.  A defendant should discuss with their attorney the nature of their charges, the elements of each offense, the minimum and maximum punishments, what the government must prove, and all possible defenses. 

RIGHT NOT TO BE PUT IN DOUBLE JEOPARDY - A defendant has the right not to be put in double jeopardy for the same offense. This includes in part a protection against prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. However, this does not  prevent two or more prosecutions by different sovereign authorities such as the United States and a state, or between multiple state jurisdictions.

RIGHT TO CALL WITNESSES AND PRESENT EVIDENCE - A defendant has the right to call witnesses and to present evidence in their own behalf. All witnesses are subject to questioning (cross-examination). The judge or jury decides whether to believe a witness. The judge or jury can accept or reject the testimony of any witness, completely or in part, when considered with other evidence. A defendant has the right to compel the attendance of witnesses to court by a subpoena.  

RIGHT TO CONFRONT THEIR ACCUSERS - A defendant has the right to confront and cross-examine in court through their attorney all witnesses testifying against them. A defendant has the right to hear the evidence against them and to challenge or examine of all evidence and witness testimony. 

RIGHT NOT TO INCRIMINATE THEMSELVES - A defendant has the right not to give evidence against them. A defendant has the right not to give statements to the police or to testify in their case. The prosecuting attorney cannot comment on a defendant's failure to testify. A decision not to testify creates no presumption against a defendant. Nevertheless, a defendant's decision may have significant practical consequences in the minds of the trier of fact.

RIGHT TO TESTIFY - A defendant has a right to testify but is not required to testify. A defendant may not selectively testify just to favorable information. If a defendant testifies, then he or she waives their privilege of not giving evidence against themselves. A defendant is subject to all the rules of cross-examination like any other witness.  menu

A person accused of a criminal offense or serious traffic matter may be taken into physical custody by a law enforcement officer. Depending on the nature of the criminal offense, a judicial official, decides whether a person will remain incarcerated pending their trial or placed on a bond. A bond is a promise to appear in court coupled with monetary provisions in case a defendant does not come to court. A bond generally includes conditions such as good behavior, staying within the state, and timely appearing in court. A court may require that a person be released only to a professional bondsman.  .  menu

The judicial branch of government exists to resolve disputes according to law, justice, and the rule of reason. The main component of the judicial system is the trial court, which is presided over by a judge. In criminal and traffic matters, courts conduct trials to determine an defendant's guilt or innocence. Decisions are designed to be made objectively and impartially by evaluating case facts and applicable law. There are many rules and procedures designed to promote fair, just, and impartial court decisions. In the United States, there are separate federal and state court systems. Each court system has separate jurisdiction or power to hear certain matters. In Virginia, the state trial courts are the General District Courts, the Juvenile and Domestic Relations Court, and the Circuit Courts. The District Courts have jurisdiction to conduct trials by judges for misdemeanors and traffic cases, and to conduct preliminary hearings for felony matters. The Juvenile and Domestic Relations Courts initially conduct hearings for matters involving juveniles and some domestic matters. District Court and Juvenile matters are appealable de novo to the Circuit Court. Circuit Courts conduct judge or jury trials for felonies and for misdemeanor and traffic appeals. Circuit Court decisions may be appealed to the Virginia Court of Appeals. Thereafter, a defendant could seek an appeal (writ) from the Virginia Supreme Court.  

Despite elaborate rules and procedures designed to promote accuracy and reliability, the judicial process is not perfect and is subject to the same limitations intrinsic in all human activities. For example, evidence and facts presented at trial may differ with one’s expectations; witnesses may not be believed; and judges or juries may have differing views regarding the law or evidence. Consequently, there is always an element of risk going to court, and guaranteed outcomes are generally impossible.  menu

Judges are judicial officers who are in charge of court proceedings. They have extensive power to administer and control any matter properly before them. The judge’s power and authority includes the possibility of incarceration for anyone in contempt of their orders. One important role of a judge is to insure the proper administration of trials and court proceedings. Judges are responsible to properly and fairly administer established rules and procedures. In bench trials, judges also make the final decision regarding the legal and factual issues of a case. In jury trials, a group of citizens makes this decision, while the judge makes sure the proceedings are properly conducted.  menu

Attorneys are professionals licensed by a state who usually have graduated from an accredited law school. Generally, this means that they have at least seven years of university education, and have passed a state bar exam. Attorneys must comply with legal and ethical rules. They can be admitted to practice in particular jurisdictions and allowed to represent clients in court proceedings. Despite these general requirements, attorneys differ significantly in their knowledge, experience, skills, and overall abilities. Some attorneys may have years of trial experience while others may focus in other legal areas not involving going to court. In criminal cases, a prosecutor represents the state, and a defendant is represented by a private attorney, court appointed attorney, or a public defender. Within the bounds of legal and ethical considerations, it is the duty of each attorney to represent their client and to advocate the legal, factual, evidentiary, and practical considerations of their case.  menu

Witnesses are people who formally provide information to a court through testimony. Courts, Judges and jurors, need accurate and reliable information to make correct decisions. The court's primary source of such information is the testimony of witnesses. Important rights, duties, and responsibilities are determined by what witnesses say or fail to say during a trial. Witnesses are generally classified as factual, character, or expert witnesses. Fact witnesses testify regarding some aspect of the factual issues of a case. Character witnesses generally testify regarding some relevant trait or characteristic of a party or other witness. Expert witnesses testify regarding relevant matters that require some specialized training or knowledge. The main problem with witnesses is that people can say anything. Even in the best of circumstances, people are seldom completely accurate. Moreover, people can lie; people can make mistakes. The correctness of information is always important. It is up to judges or a juror to determine what information they believe. This is not always an easy task. Judges and jurors have their own viewpoints and feelings, and the interpretation of evidence and testimony frequently varies.   menu

The arraignment is the procedure of bringing an defendant before the court, the advising them of the charges, and asking them what is their plea to the charges. This is usually done the day of the trial, but can be done before the trial date.  A plea is the defendant’s answer to a criminal charge. It is usually made to the judge immediately before the trial. The judge will ask a defendant how do they wish to plea. A plea must be intelligently and voluntary. Therefore, judges usually question defendants to insure that their plea is made voluntarily with an understanding of the nature of the charge and the consequences of their plea.

There are several different  types of pleas. A guilty plea is an admission that a defendant committed the alleged offense.  No additional facts are needed to reach a verdict. A plea of guilty waives all but jurisdictional objections, impermissible sentence objections, and the objection that no offense is charged. It entirely relieves the prosecution of the burden of proving any facts. If a defendant pleads guilty to a felony, they are waiving their right to an appeal, except on jurisdictional grounds or the imposition of an impermissible sentence. On a plea of guilty, the court makes all decisions regarding the outcome of the case.

An Alford plea, usually made in conjunction with a plea agreement, is a special plea that results in a defendant being found guilty. This plea is generally made to reduce exposure to more serious punishment that could result from a trial. For example, a defendant believes they are innocent but the evidence against them is substantial and there is a significant risk that they wouldl be found guilty and receive a significant punishment. The prosecutor has offered a plea agreement, instead of risking the uncertain results of a trial, the defendant agrees to accept the plea proposal, and makes an Alford Plea. A defendant is nonetheless found guilty, though maintaining their subjective belief in their innocence.

A nolo contendere or no contest plea is usually an indication that an defendant does not wish to defend the charges against them. It in effect has the same consequences as a guilty plea.

A not guilty plea denies one committed the alleged offense. A no plea is a noncommittal assertion in which the court will enter a plea of not guilty. The prosecuting authority is then required to prove guilt beyond a reasonable doubt. A defendant has the right to defend themselves.    menu

Preliminary Hearings

In Virginia, a preliminary hearing is a court hearing held in the General District Court where a judge determines if there is probable cause or reasonable cause that an defendant committed a felony. If an defendant is charged with a felony and arrested on a warrant, they are entitled to a preliminary hearing. An defendant initially charged and arrested on an indictment is not entitled to a preliminary hearing. At the preliminary hearing, a judge may decide to either (a) certify a felony for trial in the Circuit Court, (b) dismiss the allegation if there is no probable cause, or (c) to reduce a felony charge to a misdemeanor. A finding of no probable cause is not an acquittal. The state could still pursue a case by indicting an defendant directly to the grand jury. In addition, a defendant may waive  their right to a preliminary hearing, and  their case is then set for trial in the Circuit Court.  menu

Trials

Trials are judicial proceedings conducted in a court and designed to reach a decision based upon the facts, common sense, reason and applicable law. The conduct of a trial is governed by numerous rules, presumptions, and procedures designed to promote fairness and justice.

Criminal trials involve allegations of a violation of criminal law. These matters involve the determination of the guilt or innocence of an defendant and the imposition of punishment. The process usually begins with the institution of a warrant or indictment against a person. Thereafter, the defendant person appears in court and the judge determines if they are going to be represented by an attorney. A private attorney or court-appointed attorney represents the defendant.  A prosecutor generally represents the government. A trial is then scheduled.

During a trial, the parties attempt to prove and persuade the judge and/ or trier of fact of the validity of their position by presenting evidence, law, and arguments of their legal and factual viewpoints. Evidence is any form of proof legally presented at a trial, including in part records, documents, photographs, forensics, drug analysis, and the testimony of witnesses. The rules of evidence control what evidence is material, relevant, and admissible in court. For example, the hearsay rule generally prohibits statements by individuals who are not in court. In addition, certain constitutional requirements may also determine if certain evidence may be used or if it is to be excluded from a trial. Application of these rules is within the sound discretion of the trial judge. The trier of fact, judge or jury in a jury trial, decides the meaning and relative importance of the evidence.

The government or person prosecuting the case first presents their evidence. This is generally done through the testimony of witnesses. The defendant through their attorney has a right to challenge or contest the materiality, relevance, accuracy, reliability, importance or significance of any evidence, including witnesses. Cross-examination is one such method.  At the conclusion of the prosecution case, the defendant can make motions regarding the prosecution case including that they failed to establish their burden of proof. Thereafter, the defendant has the right to present their evidence. At the conclusion of all the evidence of a bench trial, each attorney makes a closing argument to the judge why they should prevail.

In a jury trial, the judge and the attorneys first consider and determine the appropriate legal and procedural instructions that the jury should receive. Thereafter the judge reads these instructions to the jury, and the attorneys then make their closing arguments to the jury. The closing arguments allow each attorney to present to the jury what they think the evidence means and why their side should prevail.

The judge and/or trier fact would then decide guilt or innocence. They would decide which witnesses or worthy of belief, and which evidence is the most persuasive. A defendant could be found guilty of the charges, guilty of a lesser-included offense, or not guilty. In addition, if a jury is hung, that is unable to make a decision, a defendant could be retried.    menu

A defendant tried and found guilty by the judge is entitled to a sentencing hearing. They are entitled to present evidence in their behalf. The court would review a pre-sentence report, including sentencing guidelines. A probation officer prepares a pre-sentence report before sentencing. This report may include biographical, educational, medical, social, employment, and other historical information. It may also include in part a history of the current offense, the defendant’s version of the offense, a summary of court proceedings, sentencing guideline information, and a recommendation of a sentence. The information in a pre-sentence report may have a positive or negative impact on any sentencing. The court can elect to have a pre-sentence report. The report may also include a Victim Impact Statement. Specifying the physical, psychological, and economic effects on victims of the crime.  

At the sentencing hearing, the defendant has the right to testify and present witnesses. The parties would then argue their respective positions to the judge. The judge imposes his sentence. If a defendant elects a jury trial, and are found guilty, the jury will have a separate hearing to decide their punishment. The jury will be informed of the defendant’s prior criminal history and other relevant information. Certain offenses, or accumulation of offenses, including previous violent offenses, can result in additional or enhanced mandatory punishment.

Virginia law provides for non-mandatory sentencing guidelines for felony cases. The guidelines provide a recommended range of punishment for various offenses under particular circumstances. The guidelines take into account for many factors including in part the classification the charges, number of charges, prior records, severity of the offense, and the impact on victims. Despite the guidelines, the defendant’s final sentence is within the sound discretion of the court.  menu

Probation is supervision by the court through a probation officer or other court service agency. The probation officer or agency can bring to the attention of the court any matter that violates a condition of the defendant’s probation. Besides other conditions of any suspended sentence that the court will impose, the probation officer or agency has discretion to set rules that the defendant must obey. These rules may include but not be limited to curfews, random drug or alcohol testing, counseling, employment activities, and location of residence. A defendant’s failure to comply with the conditions of any suspended sentence or rules of probation could result in revocation of their sentence. 

Parole is effectively abolished in Virginia. Truth in sentencing means that the defendant will serve most active jail time imposed. We are not rendering advice regarding post-sentencing procedures, including parole options.  menu

Misdemeanors and traffic cases can be initially appealable to the Circuit Court. The case is tried de novo (completely over). This is in essence a new trial. This procedure is designed in part to insure the right to trial by jury, though one is not required to have a trial by jury. On appeal, an defendant may be found guilty or not guilty. If found guilty, a defendant may receive a greater or lesser sentence.

A Circuit Court decision is appealable to an appellate court for review. This court can determine if all the defendant’s rights were observed and that the procedures and laws were followed. The appeal is not a new trial but a review of the trial proceedings. Fundamentally, appellate courts have authority to uphold a trial decision, reverse a trial decision, or require a new trial on the whole case or specific issues. Appeals are subject to strict notice, time, and procedural requirements.   menu

Despite being charged with a criminal offense, a defendant is presumed to be innocent.  The prosecuting authorities have the burden to prove guilt beyond a reasonable doubt. A defendant is entitled to this presumption at all stages of their case. Generally, if the trier of fact believes the evidence against a defendant is sufficient to find them guilty, the prosecuting authority will have overcome the presumption of innocence. A reasonable doubt is a doubt based on the judge's or juries sound judgment after a full and impartial consideration of all the evidence of the case. As such, the "reasonable doubt" standard is subjective, ambiguous, and interpretive. It is not an objective standard, and creates uncertainty regarding the outcome of criminal cases.   menu

A plea agreement or plea bargain is an agreement with the prosecuting authority regarding a defendant's case, which is presented to a judge for approval. A defendant may or may not have the option of entering a plea agreement with the prosecuting authorities. The prosecutor may not want to enter a plea agreement. There are different types of plea agreements. The most common is a plea agreement for a particular sentence. In this situation, the judge may accept, reject, or defer its decision until a persistence report. The agreement would not bind a defendant if rejected and a defendant can withdraw their guilty plea. Another judge may then conduct a defendant trial. Other types of plea agreements include the prosecuting authority’s recommendation and an agreement not to oppose a defendant request for a particular sentence. These types of plea agreements are not binding on the court. On these types of pleas, an defendant cannot generally withdraw their guilty plea. The value of entering a plea agreement is dependent upon the particular facts, merits and circumstances of each case and the risk a defendant is willing to assume. The final decision to enter a proposed plea agreement is the defendant's alone.  menu

ATTORNEY-CLIENT PRIVILEGES - The attorney-client privilege protects the confidentiality of counsel’s and a defendant’s communications. Unless it is waived, such communication cannot be disclosed except for certain reasons. The privilege does not include, in part, communications that allow a client to commit a crime, intimidate a witness, or to commit perjury. If a defendant elects to have someone else present during a discussion with their attorney, the privilege may be deemed waived.

DISMISSAL WITHOUT PREJUDICE - The Commonwealth Attorney or prosecuting authority may seek to dismiss a case without prejudice (Nolle prosequi or Nolle pross). A defendant is then subject to future prosecution. Alternatively, a dismissal with prejudice is equivalent to a finding of not guilty and a defendant cannot be retried for the same offense.  

OTHER CONSEQUENCES - A defendant found guilty, including pleading guilty, can have significant consequences beyond their immediate case. A conviction can affect important matters known and unknown, past, present, or future. Such matters may include without limitation civil matters, domestic matters, military matters, employment matters, prior criminal or traffic matters, immigration matters and other important legal rights, duties, responsibilities and privileges incidental to citizenship.

REVOCATION OF PRIOR SENTENCES - A conviction can have an adverse affect on prior criminal sentences. All prior suspended sentences could be revoked or a defendant may be subject to additional punishments.  

ALIENS CONVICTED OF CERTAIN FELONIES - If a defendant are not a United States citizen, they may be subject to Immigration Laws. A conviction of criminal offenses may adversely affect a defendant immigration status. If a defendant is subject to immigration laws, a defendant should seek legal advice regarding these consequences before a defendant criminal trial.  menu 

Help protect your rights, liberty, freedom, and good name with sound legal advice from a qualified criminal defense attorney. Just call (757) 595-8100, e-mail us at info@larrykinglaw.com, or use our secure contact form below. Free Initial Appointment.  

Larry King is a former state prosecutor and has extensive experience representing those accused of a crime. He has over to twenty-five years of criminal defense experience. He has represented thousands of people in all types of serious criminal offenses and traffic matters. He urges everyone to obey the law and to respect law enforcement officers. He knows however that anyone can be wrongly accused of a crime. He understands his important role in protecting his client’s rights and liberty.  Mr. King earned his Juris Doctor law degree from the College of William and Mary in 1974. He is a member of the Virginia State Bar and is admitted to practice in state and federal Courts. This includes all Virginia State Courts, the Supreme Court of the United States, the United States District Court for the Eastern District of Virginia, and the United States Court of Claims. He is a member of the American Trial Lawyers Association, the Virginia Trial Lawyers Association, the National Association of Criminal Defense Lawyers, the Virginia College of Criminal Defense Attorneys, the Newport News Bar Association, the Williamsburg-James City County Bar Association, and the York-Poquoson Bar Association. 

*This is general educational information. Legal matters are specific in nature, and depend on particular facts and situations. Laws change over time and facts vary from case to case. This information does not provide legal advice for your specific legal problems. Call Larry King P.C. for a free consultation.