Criminal Process

Familiarize Yourself With the Criminal Process

The Initial Charge

The majority of criminal cases in the Commonwealth of Virginia are initiated when a magistrate issues a warrant for an individual's arrest after finding probable cause to believe that a crime has been committed. Some charges are brought directly by a grand jury after they have been presented with evidence of the crime.

First Appearance of the Defendant

At the first appearance, a defendant is informed of the charge against him or her, and if there is a chance of a jail sentence, he or she is advised to be represented by a counsel. Typically, if a defendant wants to hire his or her own attorney, he or she is given the time to do so.

When an individual can't afford his or her own attorney, the court will provide an attorney for that individual with the understanding that if the individual is found guilty, he or she has to pay court-appointed attorneys' fees as part of his or her court costs. If the individual is not found guilty, there is no charge for the court-appointed attorney.

Depending on the procedure of the individual court at the initial appearance, the judge will set a bond in order to ensure a defendant's appearance at trial.

Trial in the General District Court

When an individual is charged with a misdemeanor or traffic offense, the second appearance is usually the trial date. The Commonwealth will present its case against the defendant. The defendant or his or her counsel will then have the opportunity to cross-examine the prosecution's witnesses and to present witnesses on his or her own behalf. 

At the conclusion of the case, the court will make a determination of guilt, and in cases where the defendant is found guilty, he or she will be sentenced.

When an individual is charged with a felony, his or her hearing in General District Court is not a trial but rather a preliminary hearing. While many of the procedures are the same as at trial, the court does not ask for a plea of guilty or not guilty. 

Moreover, at the conclusion of the case, the court simply makes a finding of the probable cause. When the probable cause is found, the matter is certified to the grand jury for a trial in Circuit Court. If the probable cause is not found, the felony is dismissed or reduced to a misdemeanor.
Circuit Court

Arraignment in Circuit Court

Once a matter is certified by a General District Court judge, an indictment is returned by the grand jury and the defendant is required to make an appearance in Circuit Court. At that time, the Circuit Court will set a date for trial on the felony.

A small percentage of charges in the Commonwealth of Virginia begin in the Circuit Court as a result of a "direct indictment." The prosecution can present his or her evidence directly to a grand jury without going through a magistrate or a General District Court. 

If the grand jury finds probable cause to believe that a crime has been committed, they can return an indictment against the defendant. The defendant will then be arrested on that indictment and brought directly before a Circuit Court judge where his or her bond will be set, counsel appointed, and a trial date set.

In cases where a felony has been dismissed at the preliminary hearing by the General District Court, the Commonwealth's Attorney may still seek a direct indictment from a grand jury.

An individual who has been convicted of a misdemeanor or traffic offense in General District Court has an absolute right to appeal the matter to the Circuit Court. 

In those cases and depending on the procedure of the particular Circuit Court, the defendant will either report to the Circuit Court for trial or for a first appearance at which time a date for trial will be set.
Circuit Court

Trial in the Circuit Court

In the Circuit Court, similar to the General District Court, the defendant will request a formal plea to the charge and then be tried. At trial, the prosecution will present the case and the defendant will have the opportunity to cross-examine prosecution witnesses and to call witnesses on his or her own behalf. 

However, unlike the district court, the prosecution, the defendant, or the court can request that the evidence is heard by a jury rather than by a judge. At the conclusion of the trial, the fact finder, either a judge or jury, will find out if the defendant is guilty.

Sentencing 

If a defendant is found guilty of a felony by a jury, the jury will then hear evidence that the court finds relevant to the issue of sentence. After hearing evidence from both the prosecution and the defendant, the jury will once again deliberate and return with a sentence. The court will then continue the matter so that a pre-sentence report can be prepared and the court will impose the sentence at a later date.

While the court is not bound by the recommendation of the jury, the court may suspend a portion of a jury's sentence but most Circuit Courts in the Commonwealth will follow the jury's recommendation. 

If the defendant has been found guilty of a felony by a judge, the judge will order a pre-sentence report and impose sentencing after hearing evidence relevant to sentencing at a later date.

Show Causes

In addition to the sentence imposed for a particular conviction, a defendant may be subject to the imposition of previously suspended time on a previous charge. 

If a defendant receives an additional conviction while on probation, the court that convicted him or her of the charge for which he or she is on probation will often issue a "show cause" for him or her to return to that court and explain why suspended time should not be imposed.

Appeals

When a defendant is found guilty after having pled not guilty in Circuit Court, he or she is entitled to appeal his or her case in the Virginia Court of Appeals and in the Supreme Court. The defendant must be sure to notify the Circuit Court clerk's office of his or her intention to appeal within thirty (30) days of the final order of his or her conviction. 

Any conviction in General District Court, regardless of the plea, may be appealed to the Circuit Court provided that the General District Court clerk's office is notified of the defendant's intention to appeal within 10 days of the conviction.
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