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.
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.