Common Questions Regarding Criminal Cases And Procedures In Virginia

by J.D. Garrett on June 7, 2013

“Do I need an criminal defense attorney for my case?”

Just as if you were ill, you’d be well advised to see a doctor, you should also be represented by a criminal defense lawyer when facing criminal charges. An criminal attorney will be able to ensure that you receive the best possible outcome for your case. Many times the attorney will find ways to get results that you may not know are possible.

“What happens if the police never read to me my rights. Will they drop the charges?”

Police are only required to advise you of your Miranda Rights if they intend to interrogate you about the charge once you are in custody. A voluntary encounter with a police officer does not require them to read your Miranda Rights. Furthermore, if the police do not plan on using your statement in court, they need not ever advise you of your rights. Many people have been convicted on evidence other than their statements. In fact, Miranda himself was later convicted at his retrial for rape after the Supreme Court ruled his statement was inadmissible.

You should know that anything you tell police, either before you are advised of your rights during a consensual encounter, or after being advised of your rights following arrest or detention, will be used against you in court. Always demand a criminal attorney be present for all questioning.

“If the victim doesn’t want to press charges will I still be charged?”

Once the police are called and the case is sent to the Commonwealth Attorney, the prosecutor has sole discretion on whether or not to nolle prosse (or drop) the charges, or to go forward with prosecution. The victim in a particular case has some input in the process, but the prosecutor may go forward with a case against their wishes. In fact, if the victim refuses to cooperate and testify in the case, they themselves could be put in jail for contempt of court.

“What happens next?”

For many cases, the first court appearance is the arraignment. An arraignment is nothing more than a formal reading of the charges against you. In many instances, there may not even be a judge present, only a court clerk. You will be asked by the clerk if you want to hire an criminal defense attorney or find out if you financially qualify for the services of a public defender. For misdemeanor and traffic cases in Virginia Beach, this first date will be set as a trial date; but you will have the option of being granted a continuance to hire a criminal defense attorney for your case, or have an attorney appointed.

“What happens at a trial?”

This will depend on whether the trial is a bench trial (judge only) or a jury trial. Jury trial’s are only held in circuit court, not general district court. You may demand a jury trial for any felony charge, or any misdemeanor charge that has been appealed to circuit court from general district court. A jury trial is a right in Virginia to not only the defendant, but also the Commonwealth Attorney’s office and the court. Any one of the three parties may request and be granted a jury trial.

After a jury is selected, the trial proceeds in the same way as a bench trial. The attorneys and the judge will address any preliminary motions (outside the presence of the jury) and then make opening remarks. The evidence is then presented by the Commonwealth Attorney. At the conclusion of their case, the defense attorney will make any appropriate motions. If the judge determines the burden of proof has not been met, they may dismiss the case at that junction; if e does not dismiss the charge, the defense then puts on its evidence. The attorneys may then make final arguments on the evidence. After all of the legal arguments have been resolved, the attorneys will make closing arguments to the court or the jury, who will then deliberate and issue a verdict.

“What about bail?”

Many times people are not taken into custody but are released on their own recognizance. However, if bail has been set you should contact a reputable bail bond company to post bail for you. It is possible for the criminal defense attorney to argue that bail should be lowered or that the defendant should be released. However, if you choose to contact a bail company, be prepared to pay a fee that is usually 10% of the bail amount. This fee is not refundable. If you pay the entire bail amount directly to the court and all court appearances are made, then your money is refundable once the case is concluded.

If you are not granted bail immediately after being taken into custody, you are entitled to have a bond hearing before a judge. To schedule a bond hearing, you have to notify the clerk in which ever court the matter is pending. You only have the right to one bond hearing. It is highly advisable to have an experienced criminal attorney for your bond hearing.

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