Virginia Criminal Law: Preparing for Trial

Previous articles in my Virginia Criminal Law blog series have discussed what happens from your initial charge date through the bail process. After your arraignment date, the next thing that happens is that your attorney will prepare for trial.

This article will cover some of the things that your attorney will do to prepare for trial. This is not an exhaustive list, but it will give you some idea of what kind of work goes on behind the scenes.

Discovery in Criminal Cases in Virginia

The first thing that any criminal defense attorney will do is weigh how valuable discovery would be in your particular case. Discovery is the process whereby you can force the prosecutor to turn over certain documents they have regarding your case. In Virginia, criminal discovery is very limited. There are only certain types of documents that you can obtain in discovery.

At a minimum, the Supreme Court of Virginia allows defendants to request permission to obtain 1) written copies of any confessions or recorded statements made by the Defendant, 2) written reports prepared by forensic experts and law enforcement offices, and 3) copies of photographs or other documentary evidence held by the prosecutor.

However, discovery can be a two-edged sword. If the Defendant’s request is accepted, the prosecutor can ask for some things from the Defendant. These include, but are not limited to, inspection of any photographs held by the defendant or other documentary evidence, alibi evidence, or insanity evidence.

A good lawyer will advise a client on whether it is a good idea to go through the formal discovery process based upon the complexity of the particular case.

Motions in Virginia Criminal Law

The second thing that a criminal defense attorney may do is to consider what are known as “pre-trial motions.” These are motions designed to weaken the prosecutor’s case. For example, if the police officers violated a Defendant’s civil rights, a defense attorney may file a motion to exclude any evidence obtained by that officer.

There are any number of motions that can be filed by a criminal defense attorney, but the appropriate motions depend on the specific facts of your case. A pre-trial motion may not always be appropriate.

Witness Preparation in Criminal Law

A criminal defense attorney also needs to know whether there are any witnesses that will help your case. Attorneys will usually ask for you to identify anyone who was present at the alleged criminal offense who can help or hurt your side of the case. Additionally, a criminal defense attorney may want to interview character witnesses for sentencing purposes. Even if you are guilty of a crime, a character witness may help reduce jail time.

Plea Negotiation Pending Trial

Finally, a criminal defense attorney will continue to negotiate with the prosecutor throughout the entire process. While negotiations may stall early in the process, careful use of these above preparation skills may result in the prosecutor being more willing to negotiate.

Why You Need a Lawyer

Trials are hard to prepare for. It takes dozens of hours of solid leg work to make sure that you have the best possible chance at trial. Lawyers can help maximize your chances of success by engaging in these preparation processes. Therefore, you should hire an attorney to help with your criminal defense case.

Virginia Criminal Law: Bail, Bond, and Recognizance

One of the things that people charged with a crime for the first are shocked by is the possibility that they may have to stay in jail until their trial date. In Virginia, trial dates can be several months away depending on the Court’s schedule and your lawyer’s availability. You could spend as much as three (3) months in jail awaiting a trial on an offense which may otherwise carry a jail sentence of only five to ten days.

However, there is a process of applying for something known as bail. Bail is the process of getting released from jail while you await your trial. Bail includes several conditions such as bond and restrictions on your rights.

Bond is a financial arrangement you enter into with the court system whereby you are released pending trial in exchange for setting up a financial promise with the court.

Sometimes it is a good idea to request bail. Sometimes bail is a bad idea. You may not even be eligible for bail.

So what is bail, what are the types of bonds you have to post to receive bail, how do you know if you should ask for bail, and how do you ask for bail?

The Bail System in Virginia

As discussed above, bail is the process where you ask the court to release you through a financial arrangement with the court. The purpose of bail is to have a financial obligation hanging over your head that will force you to comply with the terms of a court order. For example, you may need to post a bond with the court to be released pending trial to make sure you appear for trial. If you fail to appear for trial, you may forfeit your the bond.

Virginia law defines your rights to bail in Virginia Code §19.2-120. Under that law, a person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer unless the court believes that they will not appear for trial or that the person may be a danger to himself or others.

In order to obtain bail and be released pending trial, you will likely need to post something known as a bond, which a financial promise to pay money to the court in the event that you do not appear. There can also be other restrictions on your bail, such as conditions not to leave the state.

Types of Bond

There are several different types of bond in Virginia. The type of bond that you need depends on the type of case you are involved in. Common examples of bond include a purge bond (which is used in child support cases), a cash bond (which is paid directly to the court for release), an unsecured bond (which allows you to leave jail without putting any money up), and a secured bond (which requires you to put money or property down before you can be released).

How to Obtain Bail

Your first opportunity to obtain bail will be during a bail determination hearing in front of the magistrate after you are arrested. The magistrate will review all the factors required under the law, as well as your criminal history, and make an initial determination as to whether you are eligible for bail, and what kind of bonds or restrictions will be placed on your bail.

After that initial eligibility determination, if you are approved for bail, there are several steps you may need to take in order to be released. One example is you or a family member contacting a bondsman to obtain money to pay for a secured bond. Alternatively, you or a family member may need to pay the money directly if you can afford it.

In the event that you were not approved for bail, if you were given unfair conditions of release, or your bond was set too high, your lawyer can request that the court reconsider your eligibility for bail and to set a bond that is more appropriate for your financial position.

Why You Need a Lawyer

A lawyer is important to have during your entire criminal case. Primarily because a lawyer is there to help protect you from unfair treatment, to make sure your rights are protected, and give you a fighting chance. Bail hearings are no exception. A lawyer can help you determine when it is a good idea to request a modification of bail. One of the major considerations that could play into whether requesting a modification of bail is the fact that you may get credit for time served if you were denied bail or your bail was rescinded. Talk to a lawyer immediately if you are facing criminal charges.

Virginia Criminal Law: Work Release Programs

Many people who are facing criminal charges have good jobs, and they do not want to lose those jobs. Not all jobs are eligible for work release programs, but some inmates may be able to maintain their job while they are incarcerated.

Cities and counties throughout Virginia have different rules for their work release programs. It is important to understand your local rules regarding work release before entering into any kind of plea agreement.

This article will be discussing the rules governing the Northwestern Regional Adult Detention Center near Winchester, Virginia, but many jails have similar rules.

What is a Work Release Program?

A work release program is a program that is instituted by a local jail pursuant to Virginia Code §53.1-131. Program coordinators work together with local businesses to allow inmates in their jail to keep a job while they are incarcerated.

If you are eligible for work release, the jail can allow you to leave the jail during your normal work hours and continue to make a living. The money that you obtain while you are in the work release program will be paid to the jail. The jail will then either use those funds to pay child support orders you may have, or disburse them for your use while in jail.

Are You Eligible for Work Release?

As previously stated, each jail is different. However, in order to be eligible for work release at the Northwestern Regional Adult Detention Center, you must meet the following criteria:

1. You cannot have any other outstanding charges or a detainer from another state;

2. Your sentence must be less than twelve (12) months;

3. You cannot have any escape attempts, violent crimes, or felonious assault on your record in the last five (5) years;

4. No sexual offenses;

5. No active protective orders; and,

6. No failure to appear or capias charges in the last five (5) years.

The reason for these requirements is that the jail has to be sure that you will not engage in any harmful activities while you are at your work site.

Your local jail may have additional requirements for eligibility.

How Do You Request Work Release?

Work release programs are managed by the jail. A judge is not the person you have to ask for permission to be put on work release. There are several documents that must be submitted to your holding facility prior to your incarceration date. For the Northwestern Regional Adult Detention Center, you must complete and submit all those documents at least five (5) days prior to your incarceration date.

If you would like to be considered for work release, discuss that with your lawyer prior to your trial date or delayed sentencing date. Additionally, once you have spoken with your lawyer, the lawyer may advise that you contact the jail.

Why Do You Need a Lawyer?

It is important to have a lawyer during any criminal case because jail time can have a lasting impact on your employability and future. Even a jail sentence of five (5) days can harm your future. Therefore, it is important to make sure you take every step you can to get the best outcome possible. Depending on the facts of your case, that strategy may include work release. Work with your lawyer to determine what strategy is best for your specific case.

Virginia Crimina Law: Extradition

In the modern world, people move around a lot. This often creates problems when someone has been charged with a crime in one state and moves to another. For example, a person could be charged with Assault and Battery in Texas and then subsequently move to Virginia before he has a court date.

In that scenario, Texas may be able to force Virginia to return that person. This is a process known as extradition. Extradition is a long and complicated process. However, it is important to know what extradition is if you are in Virginia and are ever presented with a question about extradition, such as should you waive it or not.

So what is extradition, and how does it work?

Extradition Law

Extradition is governed by a law known as the “Uniform Criminal Extradition Act.” Some states have decided not to adopt the act, so it is important to seek out a local attorney to determine if your state is one of them. Either way, Virginia has adopted the Act.

The act creates a set of procedures that have to be followed by an outside state, such as Kentucky, for the return of a fugitive. These procedures include deadlines, procedures for arrest, and protections for the accused.

Extradition Arrest Procedures

The first thing that can happen which initiates extradition proceedings is the arrest of an individual accused of fleeing another state. This can happen many different ways. Sometimes, this may involve the independent action of the state where the accused is now located. Sometimes the original state may ask the new state for help in obtaining custody of the individual.

The three major ways a person can be arrested include;

1. A governor’s warrant for arrest based upon contact from another state;

2. A fugitive warrant from another state; or,

3. Arrest by a police officer based upon suspicion of being a fugitive.

Each of these different methods for arrest come with different procedures that must be followed. There are any number of ways that one of these routes could be defective. For example, if a governor’s warrant is issued, there are many different forms that must be required. If you are arrested by an officer, the officer must not be violating any of your constitutionally protected rights.

Deadlines for Extradition

If you have been arrested for being a fugitive from another state, there are several deadlines you need to be aware of. Failure to follow these deadlines could result in your release.

Upon arrest, the accused has the right to demand a hearing on whether extradition is warranted in their particular case. This is accomplished through a Writ of Habeas Corpus.

If, at the hearing, the Judge determines the person should be held, the individual can be held for an initial term of thirty (30) days, unless that person is eligible for and receives bail. A hearing will then be held within those thirty (30) days. In the event that the other state has done nothing to pursue the extradition within those thirty (30) days, then the judge can extend that time for an additional sixty (60) days. In the event that the other state has requested a governor's warrant, the timeline may be increased to 180 days.

Benefits of Waiving Extradition

In some scenarios, it may be beneficial to waive your right to an extradition hearing. The major benefits of waiving a hearing include, but are not limited to, a smaller window of time for the other state to come pick you up and the possibility of getting credit for time served.

Why You Need a Lawyer

It is important to hire a lawyer to represent you throughout this process. There are many opportunities for an experienced criminal lawyer to argue for release pending a hearing, to argue at a hearing that the extradition is improper, or to advise you on whether or not to waive extradition. Every case is unique, and it is beneficial to understand your rights and have a better understanding of the extradition process so you can make an informed decision.

Virginia Criminal Law: To Plea or Not to Plea

There are three major ways that a criminal case can be resolved. It is important to know what those three major options are when facing criminal charges. Each of these three options carry different pros and cons.

So what are these three options, and which is the best in your particular case?

Pleading Guilty, No Contest, or Alford

The first option that you have when facing a criminal charge is to enter a plea to a charge. A plea can be entered at any point during a criminal proceeding. For example, a plea can be entered during your arraignment, right before your trial, or even after the prosecution has finished presenting their evidence.

The benefit of a plea is that it removes the ability for a prosecutor to ask for specific types of sentencing by a jury. It also has the benefit of expediting the process. A plea may be appropriate if you do not have any valid defenses to the criminal charges.

Additionally, a plea puts the resolution of your case and sentencing in the hands of your judge. Judges can often be lenient depending on the facts of your case. Judges have extensive powers in deferring or waiving your sentence. However, juries have less power to depart from mandatory sentencing requirements.

Demanding a Criminal Trial

You also have the right to demand a full trial. The Commonwealth Attorney is the office responsible for pursuing criminal charges in Virginia. You have the right to require the Commonwealth Attorney to present sufficient evidence to find you guilty.

Often times, there may be deficiencies in the evidence that the Commonwealth Attorney has acquired. For example, the officer that arrested you may have done something wrong, or a witness is unavailable for trial.

Alternatively, the Commonwealth Attorney may be overestimating the strength of their evidence. Some juries may not think that the evidence the Commonwealth Attorney has acquired is enough to convict you.

The benefit of having a trial is that is forces all of these issues into the light. If there is a significant deficiency in the Commonwealth Attorney’s evidence, you could be found not guilty.

However, if the Commonwealth Attorney is able to prove their case, you could face harsher sentencing from the jury. Juries in Virginia are typically more harsh than a judge would be if you are found guilty. Therefore, trial can be both rewarding and risky depending on the unique facts of your case.

Entering into a Plea Agreement

The last major option that you have is to negotiate with the Commonwealth Attorney to receive a specific sentence. Common options in negotiating a plea agreement include; a) amending your charge to something less serious, b) suspending any jail sentence you may receive so you do not have to go to jail or c) having a deferred disposition whereby if you complete classes or some other requirements your case could be dismissed.

The benefit of a plea agreement is that you know exactly what will happen after your criminal case concludes so long as you follow the rules. The downside is that you often waive your right to an appeal, so any agreement you work out is the end of the line for your case.

Why You Need a Lawyer

Criminal law is extremely fact specific. It is impossible to recommend one course of action over another without fully understanding the nature of the charges against you and the facts surrounding how you were charged. There are a number of things which, if true, could mean that a plea agreement is the best option. Alternatively, some things could have happened which would encourage a full trial.

At the end of the day, many criminal charges carry the possibility of jail time. There are also several other consequences that can arise out of a conviction. Therefore, you should speak to a local attorney to determine what course of action you should take.