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Virginia Criminal Court Process in a Nutshell
By: Buta Biberaj &
it. The Courts can be a confusing place. And when you
are facing a criminal charge, DUI or traffic case, your stress level
is already high enough. At Biberaj & Snow, PC, our lawyers
find that the best clients are the ones who take the time to be
fully informed about the court process and can thus made smart,
With that idea in mind, this article sets forth an outline of the
Virginia Criminal Justice System, from arrest to trial and beyond.
While this primer doesn't cover every possibility, it will educate
you about the basic structure of our local courts and each of the
major steps involved in the criminal justice process. Read
this primer, and then you will be in the best position to work with
your lawyer to get a good outcome in your criminal, dui or traffic
case - whether that case is here in Loudoun County or anywhere else.
Virginia Criminal Justice System
Misdemeanor - A
crime punishable by up to 12 months in Jail. Misdemeanor cases
generally begin and conclude in General District Court, but in
some situations may be resolved in Circuit Court.
- Felony - A crime which is punishable by one year or more
in State Prison. Felonies generally begin in General District
Court, where a preliminary hearing is held. Felonies then
proceed to Circuit Court where they are resolved.
- Commonwealth's Attorney - The local prosecutor. The “CA”
represents the Commonwealth of Virginia and is the attorney
responsible for prosecuting a criminal case/charge against a
- Defense Attorney - Represents the accused (defendant) in
a criminal case.
- Private Attorney -
You may hire (retain) your own attorney at any time, regardless
of how far along your case may have progressed in the criminal
process. However, it is generally best to retain an attorney
when you first learn that there may be an investigation.
- Court Appointed Attorney - Once you’ve been charged, you
may request to be represented by a court appointed attorney
(either a public defender or a private attorney picked by the
judge) if you can not afford to hire private counsel. You must
fill out a financial form (under oath) and appear before a judge
in order to request that the Court appoint an attorney to
represent you. The Court will appoint an attorney to represent
you if the judge finds that you are financially eligible. If you
are found "Not Guilty" at the conclusion of your case, then you
will not owe any money to the Commonwealth for giving you an
attorney. However, if you are found "Guilty" of a charge at the
conclusion of your case, then you will be responsible for paying
the Commonwealth back for costs of an appointed attorney.
Note: A court appointed attorney will be paid the same
regardless of whether you win or lose your case.
- District Court - The entry level court in the Virginia
Criminal Justice System (This includes "Traffic Court"). When an individual is arrested based
upon a warrant, his/her first court appearance will be in the
District Court. The District Court is a court “not of record”
which means that the hearings are not recorded nor transcribed;
nor are there any juries in District Court. The District Court
handles misdemeanor offenses and the initial proceedings in
felony offenses (preliminary hearings).
- Juvenile & Domestic Relations Court - The special
District Court that handles cases where a juvenile (under age
18) is either the victim or the defendant, or where families are
involved (such as domestic assault & battery). The “J&DR” Court
functions in largely the same manner and method as the General
District Court, with some exceptions. For example, the J&DR
Court uses different terms for things: “Adjudication” instead of
Trial; “Disposition” instead of Sentence; “Delinquent” instead
of Guilty. Additionally, nearly all juvenile cases require the
involvement of a juvenile probation officer to supervise the
juvenile and monitor compliance with any court imposed
A juvenile’s court records are confidential and privileged
(with exceptions for probation officers, law enforcement, court
personnel, the minor, and parents of the minor or their
- The principal trial level court in the Virginia Criminal
Justice System. The Circuit Court is a “court of record” which
means all hearings are recorded or transcribed. It handles
felony cases and misdemeanor appeals. The Circuit Court is the
only court where a defendant can have a jury trial. Criminal
cases are generally initiated in the Circuit Court by
“indictment.” Most citizens should not undertake a trial in
Circuit Court without the assistance of an attorney.
THE ARREST PROCESS
- Arrest - Arrests must be based on probable cause. While there is no simple
test to define probable cause, the police must rely on what they
believe to be good information and not mere suspicion. Arrests
for a misdemeanor offense can only be made for crimes which
occur in the presence of the person making the arrest, or with a
- Summons - Certain minor misdemeanor charges do not require that an officer
make an arrest. Instead a summons can be issued by the officer,
which is similar to receiving a traffic ticket. Signing the
summons does not indicate you are guilty; rather it just shows
that you received a copy of the summons. The summons will
contain a court date and time at which you must appear in court
to address the charge(s).
The post-arrest process of gathering information about an
arrested person. While going through the booking process, the
following should be expected: photographs, fingerprints, a
search of your person and belongings, and routine questions on
background information (name, address, etc.).
If your case begins
with a court appearance and not an arrest, you may still be
required to appear at the police station for a book-and-release
Most jails will give out booking information (arrest date, bail,
visiting information, location, court date, charges and booking
number). Generally, you'll be asked for the defendant's full
name and date of birth. Keep the booking number for future
- Police Reports - The law does not require the police to release
their reports. However, in some instances your attorney may be
able to speak directly to the investigating officer for
information on the evidence supporting the arrest and the nature
of the charges.
- Magistrates - A Magistrate is a judicial official whom an
individual is brought in front of upon arrest. A Magistrate has
the authority to issue arrest warrants based upon the sworn
complaint of a citizen or law enforcement officer. The
Magistrate makes decisions regarding what charge(s) to file
against an individual and what type of bail/bond to set for an
- Charging Decision - Typically, the Magistrate makes the
initial decision as to what charge(s) to file against an
individual who has been arrested. A Magistrate can issue a
charge based upon information from the police or a private
citizen as long as the information provided to the magistrate is
sworn to and gives the magistrate “probable cause” (a good
reason) to believe that a crime was committed.
A Commonwealth Attorney also has the power to issue or change
charges, which they may do so at a later date.
A “victim” cannot “drop” a charge after it has been filed –
however, a “victim” can influence the Commonwealth Attorney’s
decisions in a case. In most cases, the Commonwealth’s Attorney
is required by law to consult with the victim prior to the final
resolution of the case. Direct contact between a defendant and
a “victim” after a charge has been filed is not recommended. If
you have any question about this, you should speak with an
- Bail / Bond - The terms “Bail” and “Bond” are often used
interchangeably. Bail is the money or conditions required for an
individual to gain pretrial release from custody (jail). Bond is
a surety agreement that guarantees that the defendant will
appear in Court.
Bail / Bond is initially set by the Magistrate after arrest. A
District or Circuit Court Judge has the power to modify an
individual’s bond at a later time if they see fit. Bail
reduction motions can first be made at the arraignment, but
usually require a minimum of 24 hours written notice to the
Court and Commonwealth. There are also other (but limited)
opportunities to bring a motion to reduce bail.
Bail is made with cash or a corporate surety bond, and is
typically posted via the Magistrate. If a bond is paid in full
and in cash, then it will be returned in full at the conclusion
of the case (assuming the defendant makes all the court dates
and does not violate any pre-trial release conditions set by the
Court.) A corporate surety bond typically requires the services
of a bondsman.
- Bondsmen / Bonding Companies - Private companies or
individuals who are licensed to issue corporate surety bonds.
Most bondsmen typically charge 10% of the face amount of the
bail / bond as a fee, plus require some form of collateral to
guarantee the defendant will return to court. In exchange, the
bondsman will post the corporate surety bond required for the
defendant’s pre-trial release from jail. The bondman's fee will
not be returned regardless of the case outcome.
- Pre-Trial Supervision Services - In some situations, a
judge or magistrate may require that a defendant be supervised
by the Pre-Trial Services Office when that defendant has been
released from custody before trial. This supervision is similar
to pre-trial ‘probation,’ wherein a defendant is monitored for
compliance with any bail conditions set by the court. The
obligation to contact and stay in touch with a Pre-Trial Officer
rests with the defendant.
Typical conditions subject to monitoring include drug/alcohol
testing, verification of employment and monitoring for new
criminal charges while on bond. If non-compliance with any
condition is reported to the Court by the Pre-Trial Supervision
Officer, the Court may revoke the defendant’s bond and hold the
person in jail until trial.
IN THE COURTROOM
- Judge - The judge is the most important person in the
courtroom. A judge is empowered to decide cases and give out
punishment for conduct that is determined to be in violation of
the law. One should always be respectful and pay attention to
what the judge says. Although a person before the court may ask
reasonable questions of the judge, the judge cannot give legal
- Attorneys - Lawyers who are trained and educated in the
field of law and who are licensed by the state to practice law
in its courts.
- Police Officer - In criminal and traffic cases, the
arresting or investigating officer will be present in court to
testify about the facts and circumstances of an alleged offense.
(Note: It is not necessarily true that a case will automatically
be dismissed if the officer is not present in court.)
- Bailiff - A Sheriff’s Deputy who is responsible for Court
security. The bailiff may be in full uniform or in a brown
jacket with a tie. A bailiff is a fully empowered law
enforcement officer with the authority to arrest individuals in
the courtroom if his/her instructions are not followed, or as
directed by the judge.
- Clerk - A court clerk assists the judge with the
paperwork required for each case. A clerk typically sits in the
courtroom to one side of the judge.
- Court Reporter - A person who records and
transcribes every word that is said in court during a felony
- Interpreter - Provided to translate for persons who do
not speak English. Interpreters may not give legal advice and
must translate what is said word for word. Spanish interpreters
are usually available in each courtroom; however, arrangements
for other language interpreters should be made with the Court in
- Your Behavior in Court - A trial in
any court is a serious matter. All judges should be addressed as
“Your Honor.” Since you want to be listened to and treated with
respect, you should dress in a neat, clean and dignified way,
and behave in a respectful manner. You may not bring food or
drink into a courtroom, and you may not carry on conversation
with other people in the courtroom, read books or behave
- Docket - The schedule of cases for the day; it tells you in which
courtroom your case will be heard. Docket sheets are usually
posted outside of each courtroom or at a central location and
are arranged by time and then alphabetically. Do not assume that
your case will always be heard in the same courtroom.
- Arraignment - The court appearance where the defendant is formally advised
of the charge(s) and of his/her right to an attorney. The Court
will also typically schedule the trial date at that time. At
this court appearance it is permissible, although highly unusual
for the Court to inquire as to how the defendant intends to
plead to the charge(s). If a defendant is unsure of how to
plead, the Court will typically enter a “Not Guilty” plea for
the defendant and schedule the case for a trial. (Note: For
minor traffic infractions, there generally is no arraignment
date; rather, the first court appearance is the trial date.)
Appear - It is a crime and contempt of court to willfully
fail to appear for court after having been given lawful notice
to do so. When a defendant fails to appear for a court
appearance, the judge may convict the person in their absence,
issue an arrest warrant (a “capias”), a summons (a “rule to show
cause”), and/or revoke the defendant’s bond and hold the
defendant in jail until the next court date.
- Discovery - Information that is required to be shared between the
Prosecution and the Defense Attorney. Discovery rights in
Virginia are very limited. At the General District Court level,
a defendant is only entitled to any statements made by the
defendant to a law enforcement officer, and the defendant’s
criminal record. At the Circuit Court level, discovery rights
expand somewhat to include the right to inspect or examine
physical evidence and scientific reports or analyses.
- Witnesses - If you need witnesses to support your side of the case, you
must arrange for them to appear in court with you. A written
statement by a witness, even a notarized one, is not an
acceptable alternative. You can request that the court issue a
subpoena to require a person to appear as a witness, but this
must be done at least 10 days before trial.
- Subpoena - A Court Order requiring the named individual (usually a
witness) to appear in Court. Ignoring the subpoena or refusing
to appear is a criminal violation of the Court Order and may
result in the named individual being arrested and held in jail
for contempt of court.
- Preliminary Hearing - Preliminary hearings only occur in felony cases, and
are only heard by the General District Court. The purpose of the
preliminary hearing is for the judge to determine whether or not
there is probable cause to send a case to Circuit Court for
trial. (A General District Court does not have the authority to
resolve felony charges.) Probable cause is usually very simple
for the prosecution to prove, because their burden of proof is
quite low. The preliminary hearing is often used by the defense
to evaluate the prosecution's case.
- Plea Bargaining - Plea bargaining is a process whereby the defense
attorney negotiates with the prosecutor to obtain the best
possible plea for his client. This process may include the
prosecution charging the defendant with a lesser charge, or
agreeing to a lesser punishment for the same charge in exchange
for a guilty plea.
A defendant is never required to accept an offered plea bargain;
it is merely an alternative to trial that the defendant can
consider if he or she chooses.
- Grand Jury - This is the mechanism for the prosecution to have charges
issued in Circuit Court. A Grand Jury is made of 7 local
citizens who meet on a specified date. The Grand Jury meets in
secret – its hearings are not open to the public, nor to the
defense. The prosecution, however, is allowed to present
evidence of alleged crimes to the Grand Jury. If the members of
the Grand Jury believe that there is probable cause that an
offense was committed, then the Grand Jury issues a “true bill
of indictment.” (This process achieves the same purpose as a
preliminary hearing, except that it occurs in Circuit Court.)
- Indictment - The term for a charge that is issued through the Grand Jury
process in Circuit Court. It is similar to a warrant, except
that it is issued by the Grand Jury instead of a Magistrate.
Charges that are issued by indictment can be either felonies or
- Pre-Trial Motions - All motions (requests) that are made of the Court
prior to the actual trial. Frequently these involve requests by
either the defense or the prosecution to obtain additional
information or to exclude evidence that was improperly obtained
by law enforcement.
- Speedy Trial - Constitutional right of a defendant to have a trial heard
within a short period of time. Charges must be dismissed and the
defendant released if the speedy trial period expires without
trial. The period is 5 months if the defendant is in custody
while awaiting trial; the period is 9 months if the defendant is
free on bond while awaiting trial. However, in some cases, a
defendant may choose waive this right in order to have more time
to prepare for trial.
- Trial - The presentation of witnesses, testimony and evidence by
the prosecution and the defense to a judge or jury, who will
ultimately decide the result of the case. Each side is entitled
to an Opening Statement by his/her attorney, which is limited to
an outline of what each side intends to prove. The prosecution
gets to present the Commonwealth’s evidence first. Once it has
concluded, the defense gets to present its own evidence. The
prosecution has the right to present rebuttal (reply) evidence
after the defense, if it so chooses. At the conclusion of all
evidence each attorney gets to make a closing argument.
Bench Trial - A trial where the decision is made
only by a judge.
Jury Trial - A trial where the decision is made by
members of the community who are selected to hear the case.
A defendant in a criminal case has a Constitutional right to be
tried by a jury, if s/he so chooses. The Commonwealth also has
the right to ask for a trial by jury. A jury trial begins with
the selection of a jury. A jury “pool” is made up of 30 to 40
members of the community who are brought into court. Each side
gets to ask questions of the potential jurors related to the
issue of whether they can be fair and impartial. Jurors with
conflicts or who exhibit signs of obvious bias or prejudice may
be removed by the court. Each side will then be permitted a
certain number of “peremptory strikes,” which is the ability to
remove individuals from the jury pool without having to give a
reason. (However, it is improper to remove someone from a jury
pool based solely on race or gender.) Once the number of
potential jurors is reduced to the right number (12 for a
felony; 7 for a misdemeanor), the jury is seated in the jury
box, and the trial begins.
Before the closing arguments, the judge will give the jury a
series of instructions about what the rules of law are that the
jury must follow in deciding the case. Then, after the closing
arguments, the jury goes back to the Jury Room to begin
“deliberations” and decide the case. A jury’s verdict must be
unanimous, one way or the other. If the result is a guilty
verdict, then a second phase of the trial will be held in which
evidence related to sentencing and punishment will be presented
to the jury. In Virginia , although a jury will make a
recommendation as to the punishment, the exact punishment will
be determined by the judge at a hearing held at a later time.
In Virginia, there are no jury trials in General District Court;
only in Circuit Court.
- Sentencing - If a Guilty finding is made in a case, by
trial or by plea, both sides are entitled to present sentencing
evidence and argument to the Court. It can be just like a trial,
with opening and closing statements, evidence and testimony, all
presented for the judge or jury to hear and consider in
determining what the appropriate punishment should be. See
“Sentence” below for more information.
- Dismissal - A formal ending of a case wherein the court
finds insufficient facts to support a conviction, or otherwise
finds a basis to end the case. The charge may not be
- Nolle Prosequi (“Null Prosse”) - Means “not prosecute” in
Latin. Similar to a dismissal, however, the same case can be
brought back or re-initiated at a later time. A prosecutor may
request a “nolle prosse” when the evidence is insufficient or if
a necessary witness fails to appear.
- Not Guilty - A formal finding by the Court
dismissing the charge(s) based upon insufficient evidence to
support the charge.
- Guilty - A formal finding by the Court where the
defendant is convicted of the charge(s). Must be based upon a
finding of proof beyond a reasonable doubt that the defendant
did in fact commit the alleged offense(s).
- Deferred Finding - A decision by the Court that
although there is enough evidence to support a Guilty finding,
the Court will postpone / defer an actual decision on the
“Guilt” of the defendant for a period of time. During that
period the defendant is often placed on probation and required
to abide by certain conditions. If the defendant follows all the
conditions, the charge may be dismissed by the Court. But, if
the defendant does not follow all the conditions, then the Court
may choose to find the defendant “Guilty” and record the
(Virginia law limits the type of charges where the Court can do
this; it is typically only allowed for certain first time
offenses. Consult with your attorney to find out more.)
- Mistrial - The termination of a trial before its normal
conclusion because of a procedural error, improper activity
during the trial that prejudices a jury, inability of the jury
to reach a unanimous verdict (deadlocked or "hung" jury), or the
failure to complete a trial within the time set by the court.
When such situations arise, the judge, either on his own
initiative or upon the motion (request) of one of the parties
will "declare a mistrial," dismiss the jury if there is one and
direct that the case be set for trial again, starting from the
- Sentence - The punishment a defendant receives from the
court upon a guilty conviction.
- Jury Sentence – At the conclusion of a jury trial, the
jury will render a verdict as to what the sentence should be.
However, this only acts as a recommendation to the judge, who
will determine the final sentence. A judge cannot exceed a
jury’s recommended sentence, but may go below the jury’s
recommendation by suspending all or a portion of the recommended
- Judge Sentence – The final sentence in a case, determined
by the judge. In making this determination, a judge is required
to consult a defendant’s sentencing guidelines. However, a judge
is free to go outside the guidelines and sentence a defendant to
any sentence permitted under the law.
- Sentencing Guidelines – A range of recommended punishment
which a judge must consult prior to imposing any felony sentence
in Virginia . An individual scores “points” based upon prior
criminal history and the conviction s/he is being sentenced for.
The number of points corresponds to a recommended range of
punishment. Typcially, the more points, the higher the
recommended sentence. Although a judge is permitted to go higher
or lower than the guidelines, if the judge does so, then s/he
must provide a reason in writing for doing so.
- Suspended Sentence - The portion of a sentence that is
delayed / not imposed for a specified period of time. Usually a
sentence is suspended on the condition that the individual
successfully complete probation. If any conditions of the
probation are violated during the suspension period, the Court
has the power to revoke the suspension and impose the original
sentence. However, if the conditions of the probation are met,
then at the end of the suspension period the court may close the
case without ever imposing the suspended sentence.
- Fine - A monetary penalty assessed against a defendant.
- Jail - “Jail” typically refers to incarceration for less
than 1 year. Jails are a local form of incarceration and are
typically operated by the County Sheriff ’s Department. There
are some Regional Jails in Virginia which serve as the jail for
several different counties, or house inmates for other
over-crowded jails. The time that a defendant spends in jail
before trial will be credited against the final sentence.
- Prison - “Prison” typically refers to incarceration for
more than 1 year. Also known as the ‘penitentiary,’ Virginia ’s
prisons are run by the Virginia Department of Corrections. Upon
receiving a prison sentence, an individual will typically be
housed in a local jail for a few months and then transferred to
a prison to serve out the balance of the sentence.
- Probation - A period of court-ordered supervision, either
following or in place of incarceration, wherein an individual’s
activities and conduct are monitored by a probation officer. The
probation officer supervises several aspects of the individual’s
life, including things like requiring periodic drug testing,
counseling, substance abuse treatment, and monitoring employment
status and compliance with the law. Any violations are reported
to the Court for appropriate action.
- Parole - Abolished in Virginia. It used to mean early
release from prison based upon good behavior, under terms and
conditions similar to probation. Presently, an individual will
serve a minimum of 85% of a felony sentence before being
eligible for release.
- ASAP - Virginia Alcohol Safety Action Program. An alcohol
counseling program required by law for all individuals convicted
of a DUI/DWI offense. Typically involves once per week
classes/meetings for a 10 to 18 week period. Participants must
pay a $375 enrollment fee, as well as fees for each weekly
meeting. ASAP also acts as a form of probation, with the ability
to report violations to the Court. Strict compliance with ASAP’s
alcohol policies is required, and monitoring may continue past
the end of the classes.
- CCP - Community Corrections Program. Equivalent to
a probation office for misdemeanor charges. CCP administers
counseling programs (substance abuse, anger management & sex
offenders) and monitors convicted individuals for compliance
with Court ordered conditions or requirements.
- Post-Trial Motions - Motions (requests) made by the
defendant after the conclusion of the case.
Motion for a New Trial – A request made by the defendant for the
case to be tried again on the basis that there were significant
legal errors in the way the trial was conducted and/or the jury
or the judge obviously came to an incorrect result. This motion
must be made within a few days after the judgment is formally
entered and is usually heard by the same judge who presided at
the trial. Such a motion is seldom granted unless there is some
very clear error which any judge would recognize.
A request to a higher court to review a lower court’s decision.
Strict timelines apply for filing an appeal.
- From General District Court – In Virginia , a defendant has an
automatic right to appeal to the Circuit Court from a General
District Court decision. This results in a “trial de novo” which
is a brand new trial in the Circuit Court. The appeal must be
noted within 10 days of the General District Court’s decision.
- From Circuit Court – A defendant does not have an automatic
right of appeal from a Circuit Court decision, but rather must
file a “petition” to an appellate court requesting that s/he be
granted the right to pursue an appeal due to a legal error that
occurred during the trial. The appeal must be noted within 90
days of the Circuit Court’s decision. If the right to proceed
with the appeal is granted, then the defense attorney and an
attorney for the Commonwealth submit lengthy written arguments
to the appellate court in support of their positions. If the
appellate court agrees that there was a legal error, then
depending on the type of error the appellate court will send the
case back to the trial court for a new trial, a new sentencing,
or dismiss the case.
- Expungement - This is an often misunderstood process.
Expungement is the civil process of erasing from a person’s
criminal record the fact that the person was charged with a
crime. In Virginia, this is only available if a) the case is
dismissed, or b) the case is nolle prosequi'd. if a person
is convicted of a charge, then that charge can NEVER be
Note: If a person is charged with a crime and then the charge
is dismissed, then the person's criminal record will show both
the fact of arrest and then at a later date a dismissal of the
same charge. A finding of Not Guilty or a Dismissal will not
erase the fact that you were charged from your criminal record.
Only an expungement will cause a charge to not appear on a
criminal background check.
- Any sentence imposed by the court may have a number of other
consequences. These other consequences will depend on the type
of conviction. They may include but are not limited to any of
-Immigration consequences (for non-citizens only)
-Loss of the right to vote.
-Loss of the right to possess a firearm of any kind.
-Loss of the right to associate with known criminals.
-Registration as a sex offender.
-Increased penalties for future criminal convictions.
Disclaimer: This article is intended for general interest only. It
is not intended to be nor should it be deemed as legal advice.
Please consult with one of our experienced lawyers at Biberaj & Snow for the best advice specific to