How a Felony Moves Through the System

Published on by Jessica Greenberg Category: Law Explainer

Preliminary Hearing (first court date after arraignment)

When a police officer takes out a felony warrant for your arrest, following your arraignment the case is initially set for a “Preliminary Hearing” in the general district court. This hearing is to determine whether there was what is known as ‘probable cause’ for the arrest (essentially, did they have enough to believe you had committed a crime rather than enough to prove it). This type of hearing has a significantly lower standard of proof than a trial but will allow a wrongful arrest to be dismissed at this stage. However, a dismissal at a preliminary hearing does not create a double jeopardy situation, meaning the state can bring the charges again in Circuit Court if they feel the judge ruled in error or obtain new evidence. This is why defense attorneys rarely put everything they have on the table at a preliminary hearing – it may just be tipping the defense’s hand to the prosecutors without any long-term benefit.

This is also the stage at which prosecutors will often offer a plea agreement on less serious charges which will reduce the case to a misdemeanor. If you choose to take this offer, the case will be finalized at this hearing. One of the largest reasons that people will take this offer is it often allows them to be released from jail much more quickly if they are being held without bond, and it guarantees they will not be convicted of a felony – with all the social and legal issues that creates. I will have more on this in a future post. There is, however, no obligation for the prosecutor to make an offer which reduces the charge, and instead they may offer a plea which includes waiving the right to this preliminary hearing. As this is one of the few chances for the defense to get a good look at the evidence, it is my opinion that it is better to have the hearing unless you are certain that you wish to plead to the charge, but other attorneys have their own views.

Setting the Case in Circuit Court

Assuming the court finds probable cause at the preliminary hearing, or you waive your right to that hearing, the case will be “certified’ to either the Circuit Court or the Grand Jury. The only difference is that a case certified to Circuit Court immediately has the speedy trial clock start, while if it is sent to the Grand Jury, the clock does not start until they also certify it. While in theory the Grand Jury may find there isn’t sufficient evidence for a charge, this almost never happens. This is because neither you nor your attorney may be present for this hearing, and the prosecutor presents their own point of view on the evidence to the Grand Jury without any countering testimony or evidence. After the case is certified by one means or the other to the Circuit Court, it will either be set for a term or a status date. A term date is only used to set the case, while a status hearing might be used to finalize a plea or to set a future date. The other types of dates that a case can be set for in Circuit Court are Plea, Trial (used for a bench trial to be judged by the Judge) and Jury Trial. A case may also be set for a Motions date for pre-trial motions to be argued and decided in advance of the actual trial.

Every single date in Circuit Court, regardless of hearing type, requires you to be present unless you are specifically excused. You should assume you will need to be there for every scheduled date unless explicitly told otherwise by your attorney. Failing to show up can result in another felony charge for failing to appear – which might leave you with a felony and the consequences of a felony conviction, even if your initial charges are dismissed.

Your Options in Circuit Court

In Circuit Court, you have 3 options for your case in most situations. If the Commonwealth offers a plea agreement, you may choose to accept it. The advantage of a plea is that it can be negotiated with the Commonwealth even if the initial offer is unacceptable and can contain conditions the court is unlikely to agree to in a trial. A plea also guarantees the outcome of your case if it is accepted by the court, and if the judge refuses to accept the plea, you may request another judge hear it before itis no longer an option and must be renegotiated. However, a plea in Circuit Court almost always requires that you waive nearly ALL appeals of both outcome and sentence – including not petitioning to amend the sentence in some jurisdictions. This means that if you plead to a charge, you will almost certainly be stuck with whatever agreement you have made.

You also have a 100% right to a trial, you are never required to plead to any charge. You may have a bench trial (where the judge decides guilt or innocence and then if you are found guilty, imposes a sentence) or a jury trial – where you may choose to have the jury sentence you or opt for the judge to do so. Jury trials tend to take longer, and are significantly more complicated – getting a jury trial set within less than 5-6 months in Virginia post-pandemic-closures is unusual unless the court is risking running out of time under VA or US speedy trial laws (Virginia specifically allows only 5 months from the time the case is certified – by either the General District Court or the Grand Jury – to Circuit Court if the person is being held in jail, and 9 months if they are out on bond). This timeframe was tolled (allowed to be extended without penalties on the state) during pandemic closures but that has since stopped, although there are still trials pending that were affected by that rule.

The advantage of a jury is that you can avoid any biases the individual judge might have (although it may not be possible to eliminate that same bias from the jury, depending on what it is – a bias is merely a mental scale that isn’t entirely balanced on some issues and every person has some, like most people have a major problem with mistreating animals which will affect how they view charges involving it, etc.). Juries generally take their jobs very seriously and attempt to apply the correct standards as given to them. A jury also has a limited, snapshot understanding of the laws and the types of evidence, which is much narrower than a judge which in some cases may work in your favor.

A bench trial is generally faster and is usually the best choice for a case that hinges heavily on technical aspects of the law – going back to that snapshot, the jury is not going to have the complex and interwoven knowledge of the law necessary to fully understand a complex technical issue. A bench trial is also a good choice when there is a major problem with the Commonwealth’s argument as it can save you time and money. In addition, when the evidence itself is going to be damning even if it in no way ties to you (for example in a case where the evidence involves pictures that look terrible regardless of responsibility), a judge is more likely to be able to see beyond that awful image to see the connections or lack thereof to you.

Which type of trial is best for your case is something you should discuss with your attorney and decide in conjunction with them. Every case is different and there will be different factors which you and your attorney need to consider and evaluate before deciding. The above advantages are generalized and may not apply to your case.

Additionally, you and your attorney should discuss whether it is best to have the judge or the jury sentence you. This is now a decision up to the parties in the matter, although if you wish to be sentenced by the jury, your attorney must file a motion to that effect more than 30 days before the jury trial date, so this decision needs to be made in advance if you wish jury sentencing. One advantage of judge sentencing is that in emotional cases they have been found to impose lighter sentences statistically (although that may not hold true for your judge) and the judge can suspend a portion of the sentence, which a jury may not do. This is a complex question and should be discussed with your attorney with enough time for you to opt for jury sentencing if that is your conclusion.

Sentencing

If you are found guilty at trial, the case can be sentenced right away. If you have a jury and have elected for jury sentencing, it will be sentenced right away as the jury isn’t brought back months later to make that determination, so after the verdict is read the court will move shortly into the sentencing arguments. However, if you are being sentenced by the judge either at a bench or jury trial, the case will often be set for a later sentencing date to allow time for a pre-sentence report to be prepared by the department of Probation and Parole. This report will go into the kinds of details of a person’s life that are not considered at trial, such as family and financial obligations, family history, living situation, and so on. Either the defense or the prosecutor may request this evaluation. Typically (though not certainly), bond conditions remain the same as they were before the trial while an individual awaits sentencing, but the judge does have the authority to modify them at this stage.

If you have a sentencing hearing, there are a few differences from a trial where the judge or jury is determining guilt or innocence. First, evidence rules are somewhat relaxed, and this is the stage where the kinds of information in the pre-sentence report regarding a person’s personal life may be brought in. Usually, but not always, family will be a part of this hearing, and things like documentation proving a mortgage or child support payments may be provided. The goal here is to make the court see the individual rather than just the charges and consider your individual circumstances. While it is the same judge at this hearing as the one who oversees the trial, the hearing is usually 2-3 months after the trial to allow Probation and Parole to complete their report. While both sides may waive the preparation of that report, it often helps more than hurts, but your specific circumstances may differ so again, this is a decision to discuss in depth with your attorney.

Barring a plea agreement where you have waived the right, you may appeal either your conviction or sentence after the trial is complete to the Appeals Court of Virginia. However, generally speaking, you will be required to begin serving your sentence under the terms the court set while awaiting that appeal unless the Appeals Court hears argument for and grants a temporary injunction while the appeal is pending (this is incredibly rare). An appeal is based exclusively on the trial court’s record, so anything that is not raised at trial is not an option to raise on appeal. This is why, particularly at a jury trial but at any trial, you will see your attorney making objections that they do not expect to win; they may even let you know they expect to lose certain motions and arguments at the hearings they are set for because they are seeking to preserve the record in the event you need to appeal. I often end up making motions before or at a jury trial that I entirely expect the judge to deny in order to preserve that record.

While this is the procedural portion of the trial life of a felony charge, every case is different, and no two sets of circumstances will perfectly fit the same advice. Therefore, you should communicate with your attorney at every stage and make sure that you are keeping in touch with them – otherwise they may be forced to make some of these decisions on your behalf (for example, if you are unreachable and they must make a motion in the next few days to preserve the option of jury sentencing, they will have to decide for you whether to file it and risk jury sentencing, or not file and waive that right). So even if you owe them money and are unable to pay, you may be harming your attorney’s attempts to put on a defense or find yourself stuck with their decisions on your behalf if you aren’t keeping in touch.  

Translating Virginia’s New Data Protection Act

Published on by Jessica Greenberg Category: Code Section Review

Below, I have gone through the new law which Virginia passed last year that is intended to protect our personal data and translated the sections that directly apply to consumer use or summarized those that do not, with references on where to find the rest of that information. This is because we never just write it in plain English, and accessibility for something like this is important. This is not legal advice, simply a plain English translation of the actual language, and I do not represent how the courts will actually interpret or apply this law.

There are serious limits to this protection, the biggest one being that you must opt in with every business/website/company that has your data, and it explicitly and clearly does NOT create the right to sue for violation – it lets the AG fine/penalize companies instead, but there is no civil suit created by this law. For this to apply to any particular company, the company must either process the data of more than 100,000 people, OR they must process data from more than 25,000 people AND 50% or more of their income has to come from the sale of personal data. There are several exemptions, including credit reporting agencies, health care, government and several others. If you’re not sure, check §59.1-576 for the rest.

To request that companies comply with this law, you will likely need to make requests in writing as the legislature left out any actual mention that they have to allow electronic communication, just that it should be based on security and how the company usually communicates with you – which probably was meant to let you do it by email, but all of these companies require you to communicate by mail to enforce various other rights, so assume they are going to require that.

Consumer is you, the person using the service

Controller is the company that is directly collecting the data from you

Processor is a third party handling the data for them, usually this is something like a payment processor, but it could also be part of whatever service they are providing that is provided by a third party handling the data directly.

§ 59.1-577. 

A. You may a request to a party that controls the data specifying which rights you wish to invoke (this would have to be done for every controller) and for now you should MAIL it as the code did not specify and most of these retailers require all similar requests to be submitted in writing. You may request:

  1. Do they even have your data?
  2. They must allow you to correct inaccuracies within limits (not clearly defined)
  3. To DELETE personal data obtained about you
  4. To obtain a copy of their data, where at all possible in a format that can easily be transmitted to someone else if you want to transfer the info to another institution
  5. To opt out of the processing of your data for the purposes of:
    • Targeted advertising
    • The sale of personal data
    • Profiling to produce legal or other significant effects on the consumer (I’m guessing this is meant to be predictive behavioral algorithms but that isn’t what it says so we shall see).

(The following is an aggregate interpretation of the general rules of the remaining subsections for ease of understanding – it is broken down by type for the purposes of enforcing the law.) They must respond within 45 days, and may extend that by an additional 45 with notice and a reason for doing so. The information must be provided free of charge up to 2 times a year – if the requests become significant burdens from a particular individual, they can charge a small, reasonable amount or decline to act on it (so don’t harass the companies or they can ignore you basically).

If they have something like a deletion request and get data about you from a third party, they must treat it the same, keeping just enough record basically to show your preference and that it was done.

 All Controllers must set up an appeals process, and it must be conspicuous and easy to use. They must respond within 60 days and if they deny, give you the info to complain to the Attorney General.

§ 59.1-578.

A. Data controllers are required to:

  1. Limit data collection to what is reasonably necessary in relation to the purposes it’s being processed for, in line with whatever they told you it was for.
  2. How exactly this will be applied is still undetermined.
  3. They must implement reasonable admin, tech and physical data security to protect the data appropriate to the volume and nature of that data.
  4. The companies may not discriminate against you for opting out (BUT they can offer basically any incentive they want for you opting in).
  5. They may not process sensitive data without explicit consent, or for a child under the Child’s Online Protection Privacy Act (15 U.S.C. § 6501 et seq.)

B. Any contract or agreement which waives the rights under this section is void as against public policy.

C. They must provide a clear and ACCESSIBLE privacy notice that includes:

  1. The categories of personal data they process.
  2. The reason they are processing that data.
  3. How to exercise your rights under 59.1-577 (choosing to opt out etc) and how to appeal their decisions.
  4. The categories of data they share with 3rd parties, if any.
  5. The categories of 3rd parties they share that data with.

D. If they sell data to 3rd parties or use it for targeted advertising, they must clearly and obviously post that, and how to exercise your right to opt out.

E. They must establish and post in their privacy notice one or more secure and reliable means for you to submit the request to exercise your rights, which must take into account the ways you normally interact with the controller, the need for secure and reliable communications, and their ability to authenticate your identity. They can’t force you to make a new account, but they can require you to use an existing one.

§ 59.1-579.

This section deals with the relationship between the Processor of the data and the Controller (the website or company) and doesn’t really deal with Consumer rights explicitly, merely the Processor’s obligation to comply with the Controller’s transmission of the requirements based on your requests to exercise your rights.

§ 59.1-580

A. The Controller must conduct and document a data protection assessment for each of the following processing acts which involve personal data

  1. How they process data for targeted ads;
  2. The sale of personal data;
  3. Processing of personal data for the purposes of profiling where that profiling presents a risk you can see coming of (i) unfair or deceptive treatment of consumers or which will have an unlawfully different impact on them, (ii) a foreseeable risk of financial, physical or reputation injury to consumers; (iii) a physical or other intrusion on the privacy or private affairs or concerns of the consumer where that intrusion would be offensive to the reasonable (average) person; or (iv) foreseeable risk of other substantial injury to consumers;
  4. The processing of sensitive data; and
  5. Any processing actions which involve personal data and present an increased risk of harm to consumers.

B. The assessments conducted under subsection A must identify and weigh the benefits from processing to the controller, the consumer, some other party, and the public against the potential risks to the rights of the consumer that come from the processing, taking into account any safeguards which reduce the risk. They may use de-identified data and the reasonable expectations of consumers, the context of the processing, and the relationship between the consumer and the controller.

C. The Attorney General (“AG”) may request, pursuant to a civil investigation, that a controller disclose any data protection assessment relevant to the investigation they are conducting and that must be made available. The AG may evaluate the assessment to make sure they are following the requirements, but these assessments are confidential and exempt from public inspection and copying under the Virginia freedom of information act and turning it over to the AG does not waive any of its associated privileges which would keep you from getting your hands on it.

D. If the other processing actions they take are similar, they may opt to do just the one assessment.

E. If they do a data protection assessment for compliance under some other law or regulation that is reasonably comparable in scope, that is good enough.

F. These assessment requirements only apply to processing activities created or generated after Jan 1, 2023 and are not retroactive.

§ 59.1-581

This section deals with the various requirements for so called ‘de-identified’ data, the data that is not allegedly associated with your real identity in any way. The parts that are directly relevant to the average citizen are:

C. They are NOT required to comply with the rights in the first section of this translation/interpretation  if:

  1. They can’t reasonably associate the data with you, or it would be unreasonably burdensome for them to do so.
  2. They do not use the personal data to recognize or respond to a specific person whose data it is, or associate that data with other personal data about the same person.
  3. They don’t sell personal data to any third party or otherwise voluntarily disclose to any third party other than a Processor, except as permitted in this section.

D. Your rights can’t be exercised if they can prove that any information necessary to identify you is kept separately and is under effective tech and organizational barriers that prevent the Controller from actually accessing it.

E. If they disclose de-identified data or data with pseudonyms attached, they must exercise “reasonable” oversight to make sure that they are in compliance with any contractual commitments to which that data is subject (so if they made contract promises to you, they have to make sure they are enforced on this data as much as reasonably possible) and must take appropriate steps to deal with any violations of those contracts that do happen.

§ 59.1-582

A. This section is all the things the law DOES NOT restrict or prevent, including

  1. Compliance with all applicable laws.
  2. Complying with government investigations.
  3. Cooperating with law enforcement if they believe your activities violate the law.
  4. Their ability to investigate and handle legal claims.
  5. Provide a product or service you ask for, perform on a contract that you’re a party to.
  6. Take steps to protect an interest that is essential for the life or physical safety of you or another person, and where processing cannot be specifically based on another legal basis (this is the ripcord option, in an emergency involving the life or physical safety of a real person,  can respond as appropriately).
  7. Their ability to take security steps to prevent, detect or respond to security threats, identity theft, fraud, harassment, malicious or deceptive activities, or anything illegal; they may also act to preserve the integrity or security of their systems and to investigate, report or prosecute those responsible for any such attack.
  8. This part covers various types of scientific and statistical research and there are rules for this in here if this is applicable.
  9. Help another Controller, Processor or 3rd party with the obligations under this code section.

B. The obligations under this section do NOT restrict their ability to collect, use or retain data to:

  1. Conduct internal research to develop, improve or repair products, services or technology.
  2. To put out notice of a product recall.
  3. To identify and repair technical errors that are interfering with current or intended functionality.
  4. Perform internal operations reasonably in line with what their customers expect or reasonably anticipate based on their existing relationship with the Controller or are otherwise in line with processing data for the purpose of providing a product or service specifically requested by the  Consumer or following contracts to which the Consumer is a party.

C. Specifically exempts the Controllers from obligations that would violate an evidentiary privilege under the laws of Virginia. Nothing prevents them from providing personal data under those circumstances as part of a privileged communication.

D. This section basically says that as long as one of the parties (Controller or Processor) believed the other parties were acting correctly, so long as they did not have actual knowledge of the other party’s intent to violate or actually violating this law, they aren’t responsible. And the reverse is true for any company receiving that data.

E. This section doesn’t interfere with exercise of rights, or the processing of personal data by a person in the course of purely personal or household activities.

F. Personal data that is handled under this section may not be used for any other purpose but those explicitly listed unless explicitly allowed by some other section of the code. Personal data processed under this section may be processed only as far as is:

  1. Reasonably necessary and proportionate to the purposes of the section.
  2. Adequate, relevant, and limited to what is actually necessary to the purpose. Any data processed under section B shall be subject to related uses only and must be protected ‘reasonably.’

G. Any data processed under this section’s exemptions places a burden on the controller of demonstrating that the processing in fact qualifies and complies with the requirements in F.

H. If the only thing the entity does is process data for the purposes of subsection A (government), that doesn’t make them a Controller for the purposes of this law.

§ 59.1-583

If the AG has reasonable cause to believe any person or entity is violating this chapter, they are empowered to issue civil investigative demands.

§ 59.1-584

A. The AG has exclusive authority to enforce this law (meaning you can’t sue; you must go through the AG).

B. Before initiating action, the AG is to provide 30 days written notice which specifically points to the parts of the law the AG believes are being violated. If within that period, the Controller or Processor fixes the expressed problems and notifies the AG in writing that they have done so and that no further violations will occur, no further action is taken.

C. If they continue to violate after the 30 day period or if they violate that written statement, the AG may initiate action on behalf of Virginia, may seek an injunction to prevent further violation, and seek up to $7,500 for each violation.

D. The AG can request any reasonable expenses from the investigation, including attorney’s fees.

E. This part clearly tells you that there is no way to sue under this law, you must go through the AG.

Why I consider myself a translator

Published on by Jessica Greenberg Category: Philosophy

When I talk about what I do, I often say that a big part of my job is to translate the law. The choice of that word – translate – is very deliberate on my part. My good friend and business manager Arthur and I have been friends for a long time, but we come from very different backgrounds. When we met, he was enlisted in the military, and I had already graduated from law school. What this meant was that, although he is extremely intelligent, he did not have the same vocabulary that I did – and he spoke what is essentially a slightly different dialect of English than I did, since he was from another part of the country. So sometimes, what I said would go right past him, like I was speaking a foreign language – and sometimes what he said would do the same to me. And because it was Arthur, I took the time to explain what those different words or phrases or idioms meant in what I call plain English, and he did the same. Plain English is the version of English that everyone can understand because it uses simple terms, no idioms or terms of art (words to replace an entire complex concept as a form of shorthand). And it is the version of English that can be used to explain a concept to anyone fluent in the language. Especially in this country, we tend to mistake a lack of comprehension for a lack of intelligence – which is a dangerous fallacy (false belief) that hurts us all. Most people are more than capable of understanding the legal system, but they do not speak the language necessary to do so, and so they need a translator as much as they need a defender, so I aim to be both.

What happens in the criminal justice system has powerful effects on the lives of those involved – at the very least, they deserve to understand what on earth is happening to them. So that is a major goal for me, to be sure that my client is with me every step of the way, they are my partner in their case, making critical decisions based on the best information I can give them. Granted, some of what I am doing is giving an explanation, but a lot of it is translation. Much of what I have to tell people is what they have already been told by the officers or by the judge – but they were told in a jargon they don’t speak. It is why after every court date with a client, I am usually going to spend 15-20 minutes, after the case has been called, explaining he implications and details of what just happened. The court has a lot to get through, a lot more cases than the original design for the system was set up to expect, and so they have to go as quickly as possible to get through everything they need to do that day in time to get home sometime that evening. That means that the judges rarely take the time to explain more than once, if even that once, what exactly the outcome means for this person. They give a general idea, but a thirty second statement isn’t going to ever be able to cover everything you need to know after your case is over. And I never want you to need me again, after your case is over.

As an example of this, any suspended jail is conditioned on what they tell you is “so long as you keep the peace and be of good behavior”. Generally, this is all the court will actually say, without bothering to explain that what this actually means is that the suspended time does not have to be served, but it is hanging over your head for however long they tell you it is suspended. Unless they put you on supervised probation (where you actually have to report to a probation officer), this means you’re on unsupervised probation for that time. If you get arrested for anything during that time – even if you aren’t convicted, if there were actually grounds for the arrest (something like disorderly conduct at a protest with no conviction in the end) they could violate your probation. That would result in you having to go back to court where they would consider imposing some or all of the time that was suspended (rarely all of it on the first go unless what you did was particularly bad). If you don’t break the law or get arrested during the suspension period, then the time never has to be served and at the end of it you are no longer on any form of probation. Basically, what the court is saying is ‘don’t do it again or we’re going to come down on you like a ton of bricks’.

I am somewhat prone to overexplaining as a result of all of this, so I never take offense at someone interrupting me to tell me enough, they get it.  The only thing I’m really interested in is being sure you understand what is happening to you – once you’ve got it, we can turn off the translation circuit to discuss strategy and other parts of the case.