The Criminal Process in Virginia - WHAT HAPPENS WHEN YOU ARE ARRESTED
Have you, a friend, or family member been charged with a crime in Virginia? If so you have probably realized by now that the process is confusing and it can often be difficult to get information on what is going on and what will happen next. Undoubtedly, you probably have some questions.
It is important to note that while procedures do vary from jurisdiction to jurisdiction, there are basic principles of law that all jurisdictions must obey.
How You Get Charged With a Crime
All prosecutions begins with the issuance of a warrant or a summons. Virginia Code Section 19.2-73. A warrant is issued by a judicial officer, typically a magistrate, upon a finding of probable cause to believe that a crime occurred and that the subject of the warrant is the person who committed it. Warrants and summons are also referred to as charging documents.
A warrant authorizes police to arrest that person and bring him to that jurisdictions local jail, where he will appear in front of a magistrate, who will determine if a bond should be issued.
A summons is also served by police upon the person charged, however, a summons does not require that the person be arrested. Often the individual can simply sign the summons promising to appear in court on the date listed. A summons also need not be issued by a judicial officer—rather, a police officer himself may issue the summons.
Do I Need a Bond? If So, How Do I Get A Bond?
If you were arrested on a warrant you may need to post a bond in order to be allowed to leave the jail and go home until your court date.
A bond is a written promise signed by a defendant or a surety to pay an amount set by the magistrate or judge, if the defendant fails to show up to court at the date and time specified. If you do not pay the bond, or if the magistrate does not issue a bond, then you will be held in jail until you appear in court and a bond hearing is scheduled by an attorney.
Court - Beginning the Adjudicatory Process
Following service of the warrant or summons, almost all cases will next proceed to a district court.
Only charges that are direct indictments (this is extremely rare) will start at the Circuit Court level. You would most likely have no idea that your case was directly indicted (meaning the charging document was issued by a grand jury) until your lawyer explained it to you. If you have further questions about direct indictments and how they can affect your case, it is important that you speak with an experienced criminal defense attorney.
If the defendant is an adult then the case normally starts at the GDC (General District Court). If the defendant is a juvenile, or the offense involves a juvenile or family or household member then the case would start in JDR (Juvenile Domestic Relations Court).
Arraignment or Advisement - Your First Court Date
Typically, the first hearing on either a warrant or summons is called an Advisement or Arraignment. An Advisement and Arraignment are the same thing - some jurisdictions use one term and some the other, according to local custom.
What happens at an Arraignment / Advisement?
The purpose of an arraignment is to
(1) formally advise you of the charge(s) against you,
(2) to inform you that it carries the possibility of jail time, and
(3) to ask you what you plan to do about a lawyer.
When you are charged with an offense that carries the possibility of jail time you have the right to an attorney, and if you can not afford one the court will have you fill out paperwork to determine if you qualify for a court appointed attorney.
What If I Plan To Hire My Own Attorney - Attorney Review Date
If you plan to hire an attorney the court will give you time to do so and will normally set an Attorney Review Date by which you must have hired an attorney and that attorney must have filed a Notice of Appearance with the court informing the court that they represent you. If you have done that then you normally do not need to appear at the Attorney Review Date. You must confirm with your attorney whether you need to go to court for any and all hearings.
Note: Every jurisdiction is different, and if you fail to appear in court you may get fined or even charged with an additional offense for Failing to Appear (FTA).
What If I Have Not Hired An Attorney By My Attorney Review Date
However, if you have failed to hire an attorney by that date you must go back to court on that date and explain to the judge why you have not hired an attorney yet. The judge will normally expect you to arrive prepared to explain the steps you have taken to hire an attorney - be prepared to show your diligent efforts. At this point you must do one of three things:
(1) ask for more time to hire a lawyer, (which the judge may or may not grant),
(2) ask for the court to appoint you a lawyer, or
(3) waive your right to a lawyer.
Benefit to Hiring a Lawyer Before Your Arraignment Court Date
If you have hired an attorney before the arraignment court date your lawyer will normally be able to waive your presence at the Arraignment, meaning you will not have to go to court on that date.*
*Note: Each Jurisdiction has different local policies on this, so it is important to confirm with your lawyer if you will have to appear in court or not.
When Can I Have a Bond Hearing?
If you were arrested on a warrant and not granted a bond by the magistrate then you will be held in jail pending trial, or until a judge grants you a bond at a bond hearing. Typically, you must have a lawyer to file a Bond Motion. The specific procedure for filing a Bond Motion varies greatly from jurisdiction to jurisdiction, however most will not entertain the issue of bond at the Arraignment. The reason for this is that the prosecutor would not have adequate notice or time to prepare to address the issue of bond at that hearing. As a result, most Bond Motions are heard after the arraignment.
What Level Of Court Will I Be In?
At the District Court Level (both GDC and JDR), misdemeanors are tried and preliminary hearings are heard on felonies. All misdemeanor trials held in Virginia District Courts are bench trials. Bench trial means that they take place before a judge sitting without a jury, and the judge alone decides whether there is sufficient evidence to find you guilty.
Jury Trials and How To Get One
But don't you have the right to a jury trial? Yes, you do, even for a misdemeanor case. So how do you get one? To have a jury hear your case, you must first get your case to Circuit Court. The Court System in Virginia is complex and often confusing, and you need an experienced criminal defense attorney to help you navigate it.
How De Novo Appeals Give Criminal Defendants A Distinct Advantage
If you are convicted in a District Court (GDC or JDR) of a misdemeanor, you have a right to appeal your case to the Circuit Court. Your appeal of a GDC or JDR case is a "no strings attached" appeal: it is a de novo appeal, meaning that once you note your appeal, the Circuit Court wipes the slate clean. Procedurally, your case is treated as if the district court proceedings never happened. (Note that testimony is not erased, and can be used as impeachment or for other purposes in Circuit Court). This procedural law actually grants criminal defendants in Virginia a distinct advantage; every defendant in Virginia is allowed two bites at the apple.
Circuit Courts Are Courts Of Record and Your Last Chance for a Trial
Circuit Courts in Virginia are courts of record. A court of record is one whose judgments and proceedings are kept on permanent record consisting of a written transcript (created by a court reporter who sits in the courtroom and writes down everything that was said), as well as written orders and rulings by the judge.
In the Circuit Court, you have the right to a jury trial for both misdemeanors and felonies (misdemeanors have a 7 person jury and felonies a 12 person jury).
Virginia Court of Appeals
You have the right to appeal Circuit Court convictions to the Court of Appeals. However, because the Circuit Court is a court of record, while you have the ability to appeal a conviction, your right to do so is much more limited. Cases from Circuit Court can only be appealed to the Virginia Court of Appeals if there was something legally wrong that occurred during your trial.
You do not get a new trial in the Virginia Court of Appeals. Rather, your lawyer prepares a written argument about the issue(s) you are claiming were legally incorrect. A written transcript of the Circuit Court trial is attached and both are sent to the Virginia Court of Appeals for consideration by a panel of judges. Your lawyer may not even appear in the Court of Appeals to make an oral argument unless they specifically request the right to do so in writing.