Dave Albo – Attorney
Dave Albo – AttorneyInitial Charge.
Usually with a Felony, if you are arrested, you will be taken to the Magistrate. The Magistrate listens to the facts as stated by the police, looks at your criminal record and determines if you should be released pending trial. (Release is called “bail” or “bond”) For serious crimes of violence, there is a presumption against bond. For non-violent crimes, the Magistrate looks at whether you have a long criminal record, whether you have failed to appear in the past, your ties to the community, work history and other factors. The Magistrate is trying to determine if you will show up to subsequent hearings. If the Magistrate is sure you will show up, he will issue a “personal recognizance bond”, which is basically just a promise to show up. Otherwise the Magistrate will ask for a cash bond. If, for example, the Magistrate orders a cash bond of $5,000, that means that you must pay $5,000 to get out of jail pending trial. If you have $5000 cash, you just pay it. If not, then you can hire a bail bond company. They will put up the $5,000 and charge a fee to you of 10%. If at the end of the case, you have appeared at all hearings, then the $5,000 is returned to the person who paid it (e.g. you, your family member or friend who may have paid on your behalf, or the bail bond company.) If the bail is set too high, then you can ask for a bond reduction hearing in the General District Court to see if a Judge will over rule the Magistrate. That decision can be appealed again to the Circuit Court.
Arraignment Hearing.
Most courts have an Arraignment Hearing. This is merely a day where a Judge specifically tells you what you have been charged with and sets the next court date for the Preliminary Hearing. At this time the Judge will inquire whether you plan to hire his own attorney or if you cannot afford an attorney, have you interviewed for a court appointed attorney.
Preliminary Hearing
At a Preliminary Hearing the only issue is whether or not the court finds sufficient cause to believe that an offense occurred and sufficient cause to believe you are the one who committed it. If the court does find sufficient cause, the court will then certify the charge to the next grand jury that meets. (Sufficient cause is the same thing as probable cause. I refer to it simply because that is the term used in the statute. However, the terms are used interchangeably).
The issue for the court is not guilt beyond a reasonable doubt, but sufficient cause, which is a low burden. It is important to note that the Commonwealth is not required to put on all their evidence at your Preliminary Hearing, but only enough evidence for the court to believe sufficient cause exists. Rarely do defense attorneys put on evidence during a Preliminary Hearing. Why give the Prosecution “heads up” on your case? Rather, a good defense attorney uses the Preliminary Hearing to get additional information to help me defend you at the ultimate trial.
You have the ability to waive (give up) your right to a Preliminary Hearing. Waiving your right merely indicates that you recognize that there is enough evidence for sufficient cause. It is not an admission of guilt. Waiving your right to a Preliminary Hearing may be done in the event the Commonwealth makes a plea offer that you find attractive. (Note: A little more detail on “Plea Offers” / “Plea Agreements” / “Plea Bargains”. Whether or not to accept any plea offers in this case is your decision alone. Your attorney is required to present all plea offers from the government to you whether I think they are good deals or not. Your attorney can, of course, advise you to any pleas the Commonwealth offers and make recommendations. It is also important to note that the Commonwealth is not required to make any offers whatsoever.)
Subsequent Proceedings
Grand Jury
After a Preliminary Hearing, the case is submitted to a Grand Jury. It is interesting to note that a Prosecutor does not actually charge you. A Prosecutor presents the evidence to a Grand Jury and the citizens sitting in the Grand Jury determine if there is enough evidence to charge. The Grand Jury is a jury of six individuals that make the same determination that the District Court judge did – whether or not there is probable cause. If they find it, then they will hand down what is called a true bill of indictment. The Grand Jury proceedings are “secret” proceedings. Attorneys do not have a right to be present while the witnesses are testifying to the Grand Jury. Furthermore, an attorney does not have a right to any transcript from the proceeding itself. Only the Prosecutor goes to the Grand Jury, so naturally, they only hear once side of the case. It is rare that a Grand Jury does not certify a charge.
Term Day
If the Grand Jury hands down true bills of indictment, then you will be required to appear in the Circuit Court in person for Term Day. If you are not incarcerated you will need to be present in court on the date assigned by the District Court judge. The purpose of this will be to set a trial date and either demand or waive a jury.
The United States and Virginia Constitutions grant you the right to a jury trial. Of course, you can give up that right and ask to be tried by the judge. Understand, however, that the Commonwealth can ask for a jury. If the prosecutor asks for one, then even if you have given up your right to a jury trial, then you will be tried by a jury.
The chief differences between a judge and jury trial is that a judge trial requires only one vote to convict or acquit (the judge). Conversely at a jury trial a jury of 12 people must be unanimous to convict or acquit. (If they can’t make up their mind they are a “hung jury” and the case is retried later before a different jury if the prosecutor wishes). Also, if convicted at a judge trial, the judge will consult the sentencing guidelines before sentencing you. While they are discretionary, the judge must write an explanation as to why he or she deviates from it. Usually, judges sentence within the guideline range. However, a jury is not given any guidelines. Whatever the 12 jurors unanimously vote to impose is likely to be the sentence. Virginia judges can reduce a jury sentence, but usually don’t. Judges cannot impose a greater sentence than a jury sentence.
Trial
At trial (assuming a jury trial), the process begins with voir dire where a prospective panel of jurors are asked questions by the judge, the prosecutor, and your defense attorney. The purpose is to select jurors that are free from bias or otherwise fit to serve. After questions are asked, the attorneys move to strike jurors for cause – meaning that there is some basis in the law on which they are not fit to sit as a juror.
After the strikes for cause, 20 potential jurors are selected before the parties go to strike eight others. Each side – the defense and the prosecution – get four of the eight strikes. A juror can be struck for almost any reason. (Exceptions are things like racial discrimination – a lawyer cannot strike a person because of his race, for example). That would leave 12 individuals to be on the jury panel who will decide the facts of your case.
After the jurors are selected, there are opening statements by both sides. Then, the Commonwealth will get to put on their evidence. Evidence is usually testimony from witnesses and other evidence, such as scientific evidence. You will be able to watch the entire trial. Other witnesses will have to wait outside the courtroom, entering only for their own testimony.
The Defense can make a “Motion to Strike” after the Commonwealth rests its case. A Motion to Strike is, in essence, saying that the evidence is insufficient to establish a prima facia case (this is a Latin term for “a basic case”) that should be submitted to jury. To win a Motion to Strike, you would have to show that there is absolutely no evidence on an element of the crime. For example, your Defense Attorney may argue, “There is no evidence whatsoever that the Defendant sold the drugs.” All a Prosecutor would have to show is one piece of evidence, such as, “The Wegman’s employee says she saw me steal groceries.” If the Prosecutor can show only one piece of evidence, the case continues to move on.
The Defense can then put on evidence if it wishes, can renew its Motion to Strike, and closing arguments are made. There is no requirement for the Defense to put on any evidence. You cannot be called by either the prosecutor or your lawyer to testify if you don’t want to do so. You have the absolute right to remain silent. I, of course, will advise you and make recommendations in this regard.
What is important to note is that in the event you have a jury trial, as opposed to a Judge trial, the jury decides to convict, the same jury will get to decide punishment. Any sentence the jury renders within the range of punishment is allowed. We then have the right to request a presentence investigation report and have a sentencing hearing.
Sentencing Hearing
Hopefully, you will not need to go to this because you were found not guilty. But if you were found guilty, the next stage is the sentencing hearing, the Court may reduce the sentence or suspend a portion of the time recommended by the jury. It cannot impose a higher sentence. Often, judges impose the recommended sentence of the jury and say, “… the jury is comprised of members of the Fairfax County community and the sentence they gave is the statement of the community. I will not alter their statement of punishment.”
If your trial is by a Judge, then at the sentencing hearing, the judge looks at the sentencing guidelines just as if you had plead guilty. The judge then determines the punishment.
Appeal Rights
Appeal rights are determined by the outcome of a trial or plea. In the event a person pleads guilty, he waives virtually all rights and, consequently, he may waive a right to an appeal. The only meritorious issues, which might survive for appeal after a guilty plea are a lack of jurisdiction by the court or illegal punishment. An illegal punishment would be one which exceeds the maximum punishment permitted by law. If you plead guilty, I will notify you if either of these matters are an issue in your case.
In the event the matter is tried, and if you are found guilty, the issues that can be raised on appeal are legal errors that are in the record of your case. Please note that an appeal is not a new trial. No new evidence or testimony can be taken at any stage of an appeal.
Whether or not to appeal a case is your decision, and if you tell me to appeal then I must do so, even if there is virtually no chance of success on appeal. If an appealed case lacks any meritorious issues, I will be ethically required to request permission to withdraw from your case once the appeal has been filed.
