Virginia Legal Terms Glossary
Beyond a Reasonable Doubt
Search and Seizure
Statute of Limitations
An affidavit is a sworn statement to the court subject to the penalty of perjury. Typically, affidavits are made out of court. Often, in criminal cases, affidavits are sworn by police officers who seek search warrants or arrest warrants, and have to swear to certain facts before a judge or a magistrate in order to receive those warrants. Once the officer testifies to the facts, the judge or the magistrate can determine whether or not probable cause exists to search or arrest the individual or the property.
Affidavits are frequently used in civil cases, and sometimes used in criminal cases. In circumstances such as depositions, where a party testifies before trial to a fact and then, at trial, testifies differently, their previous statement can be used to impeach their credibility. If an affidavit is proven to be false, the individual who made the statement can be charged and convicted of perjury which carries very serious consequences.
The appellant is the party, civil or criminal, who is appealing the verdict or determination of a trial or an appeals court.
The appellant will initiate the appeal through either a petition to an appeals court or a notice of appeal to a higher trial court in Virginia. At this point, the appeal court will have the opportunity to review that decision and determine whether or not the appeal should be heard and if it determines that it will be heard, the case will proceed to be heard. It will proceed with oral arguments and then
the issuance of an opinion by the appeals court.
The appellee is the party against who the appeal is being sought. The appellee is the party who prevailed in the judgment of the trial courts or the lower appeals court.
If an appeal is sought, the appellee will have the opportunity to petition against or submit an opposition to the
petition for appeal and state to the appeals court the reasons the appeal should not be granted. If the appeal is granted, the appellee will have
the opportunity in the appeals court to argue in favor of the judgment of the lower court and the reasons why it should be upheld.
In most states and in the federal system, arraignment is the proceeding before trial where a defendant is read the charges that he or she faces and given the opportunity to answer a plea to these charges. In Virginia, however, arraignment carries a slightly different meaning.
In Virginia, the proceeding is more of a formality and is more informal. In Virginia, an arraignment does not involve the answering of a plea – only the advisement of the defendant of his or her right to counsel and the potential for jail time if the defendant is facing incarceration.
The party will be given an opportunity to apply for appointment of counsel if they cannot afford an attorney. They will be given the opportunity to waive the right to counsel or given the opportunity to return after having hired a counsel and as a general matter, the court will set a date for trial of the matter at the arraignment proceeding.
In many jurisdictions, particularly in Northern Virginia, if the defendant has already retained an attorney before the date of arraignment, that hearing can be waived and the defendant will be able to save a trip to court.
BAC stands for Blood Alcohol Concentration or Blood Alcohol Content. Under Virginia law, BAC is measured based on grams per 200 liters of alcohol present in an individual’s blood. This can be measured and determined through examinations of the breath or through examination of blood.
Lawfully speaking, studies have shown a correlation between elevated Blood Alcohol Concentrations and intoxication from alcohol. Because of this, the Commonwealth of Virginia and all other states have instituted a per se offense of driving while intoxicated if a suspect’s Blood Alcohol Concentration is 0.08 grams per 200 liters or higher.
This level creates what is known as a permissive influence of intoxication and this allows the court to make the determination that an individual’s Blood Alcohol Concentration at this level equates to the individual being intoxicated beyond what is permitted by law.
As a condition of being allowed to drive in the State of Virginia, individuals have essentially widely consented to submitting to a blood alcohol concentrations test if they are locally arrested for driving while intoxicated.
What this means is, if a driver is arrested for DUI and that arrest was valid under laws of the Commonwealth and the United States, the defendant does not have a choice as to whether or not to submit to an examination of his or her blood alcohol content. Failing to do so will result in an additional civil penalty for refusal which will result in automatic suspension of a driver’s license for a period of one year.
A bench warrant, or “capias” as it is also referred to in Virginia, is an order by the judge for the arrest of the defendant. Often, bench warrants would be issued if the defendant is released on recognizance or on bail, and fails to appear at a court hearing. They may be issued if a defendant fails to abide by conditions of probation, or if a party to the case does not abide by a subpoena that was issued by the court or an attorney.
If a bench warrant is issued, and the judge issues an order which commands the sheriff of his or her jurisdiction to the retrieve the defendant and place him or her in custody, once the defendant learns that it has been issued, it is very important for them to contact an attorney to determine the best way to go through the process.
It is rarely in the best interest of a defendant to turn himself or herself in without an attorney, because the defendant does not want their case to fall through the cracks and to have to wait a lengthy duration of time for a review of whether or not they should be in jail pending the trial of the charge.
The best course of action for a person subject to a bench warrant is to contact an attorney and have the attorney go with them when they turn themselves in, or alternatively, to make arrangements for the attorney to come to the detention facility as soon as possible after the defendant is arrested.
Beyond a Reasonable Doubt
Beyond a reasonable doubt is the burden of proof that is required for a defendant to be convicted of a crime under the constitutional due process requirement. In order for a defendant to be convicted, it must be established by either the jury or the judge, depending on who is considering the facts of the case, that each element of the crime has been proven by the Commonwealth beyond a reasonable doubt.
There is no burden on the defendant to prove any element or any fact. The Commonwealth of Virginia, or the United States if it is a federal case, carries the entire burden of proving every element of the charged crime beyond a reasonable doubt.
There is no official definition of what “beyond a reasonable doubt” means, and courts are reluctant to provide such a definition to a jury that is considering a case. It is clear however, that “beyond a reasonable doubt” does not mean beyond all doubts. A jury or a judge considering a case does not need to exclude every possible hypothesis of innocence in order to convict a defendant. The jury or judge merely need to exclude every reasonable hypothesis; once that is done, the burden has been met. If that is not done, the burden is not met and the defendant must be acquitted.
Cross-examination is the questioning of a witness at trial by the side that did not call that witness. If a defendant in a criminal case exercises his right to testify in his own defense, the cross-examination will occur when the prosecution questions the defendant about whatever they wish to know within the bounds of the rules of evidence.
It is essential for defense attorneys to be able to successfully cross-examine prosecution witnesses and recognizes holes in their testimony. An attorney will want to ensure that the jury is aware of those holes, such as inconsistent statements or things that just do not make sense.
There are tools that are available to attorneys on cross-examination that are not available on direct examination. Attorneys are able to ask leading questions on cross-examinations. These are questions that suggest their own answers. Therefore, it is easier for a cross-examining attorney to control the flow and tone of the examination than direct examination which requires the testifying witness to tell a story by answering questions posed to them.
If the defendant insists on testifying, or if their attorney believes that it is in their best interest to testify, the attorney will need to prepare the defendant for very aggressive questions that will be encountered from a prosecutor on cross-examination. The defendant must be aware of and prepared for the nature of cross-examination in order to successfully testify.
In Virginia, there is no general statute that authorizes probation before judgment, but courts do have the authority in some cases to issue what they call “deferred dispositions”.
A deferred disposition is when a case is resolved without entering a judgment of guilt against the defendant. This allows the defendant the opportunity to avoid having a conviction on his or her record. Deferred dispositions are almost always conditioned on the completion of terms of probation which are imposed by the court.
Often in Virginia, a deferred disposition is seen with first-offense marijuana possession charges. By statute in Virginia, a person who is charged with first-offense marijuana possession will have the opportunity to enroll in a diversion program which, if successfully completed, will result in dismissal of the charge without a judgment of conviction. The defendant will have the option of enrolling in a diversion program in court, once the diversion program has been successfully completed to the court’s satisfaction, the case will be dismissed.
Although there is no general authorization for deferred dispositions in the Virginia Code, courts do have some discretion to delay the imposition of the judgment based on the circumstances of any individual defendant. The Court can consider the defendant’s individual circumstances when determining whether or not to convict the defendant of the offense where evidence supports a finding of guilt.
Two years ago, the Virginia Supreme Court held, in the case Starrs v. Commonwealth, because the active rendering of judgment is strictly within the province of the courts, the courts have the authority to consider a defendant’s circumstances, and enter a judgment of dismissal, even in cases where the defendant has pled guilty to the charged offense.
The court has the authority to defer disposition, but is under no obligation to do this. As a practical matter, it is very rare that the court will consider delaying the imposition of guilt and contemplating a dismissal on the basis of probation.
An experienced Virginia attorney will be aware of which circumstances are so unique to make it worth attempting to get a special deferred disposition.
De novo is a standard of review; this is the way that a higher court will look at the lower court’s ruling to determine whether that ruling was correct and, if it was not, what to do about it. “De novo” literally means “from new”; when a court reviews something de novo, it means that it is not giving deference to the lower court’s determination. The higher court is reviewing that determination from a completely fresh perspective.
Usually, for criminal appeals in Virginia, the only issues that are reviewed are issues of law and not issues of fact. If the trial court found a certain fact to be present, the appellate court will not be reviewing that de novo. If the appellate court reviews the fact at all, it will do so on a much more deferential standard.
The conclusions of law made by the trial court – what the law is, and how it applies – are reviewed de novo by the Court of Appeals or the Supreme Court of Virginia. If it is found that the trial court got the law wrong, the appellate court will not defer to that decision. The appellate court will institute its own judgment of what is correct.
De novo is also the standard of review on appeal of right to the Circuit Court. In Virginia, misdemeanor cases are tried as a matter of first impression in General District Court (“GDC”) or Juvenile and Domestic Relations District Court (“JDR”), and these courts do not contain all the necessary constitutional protections for defendants. Therefore, anyone who is convicted of an offense in GDC or JDR has the absolute right to appeal that conviction to the Circuit Court where it would be completely wiped away once the appeal is noted. The Circuit Court, be it the judge or the jury that tries the case, will consider everything de novo, including the facts of the case, and it is not bound by any conclusion that was made by the GDC or JDR court.
Discovery is the exchange and disclosure of information or evidence related to a case between the parties of that case. In criminal cases, discovery is between the Commonwealth and the defendant, and the form that it takes will vary greatly depending on what the charge is and the jurisdiction of the offense.
In Virginia, misdemeanor cases are tried in the General District Court. GDC discovery is extremely limited by rules of the court. The only things that the prosecution is required to produce are the previous statements of the defendant, the defendant’s past criminal history, and exculpatory material in the possession of the prosecution.
In many jurisdictions, this information will not be produced until the day of trial. Therefore, it is essentially discovery by ambush, although in theory, the defendants and their attorneys have the right to seek a continuance if the discovery comes as a surprise to them.
Some jurisdictions, however, are better about this and have processes in place to ensure that the defendants and their attorneys get access to discovery materials before the trial.
In felony cases tried in the Circuit Court, the discovery rules are broader in scope and enable the defendants to receive more information than what they would receive in misdemeanor cases, and to receive that information in a reasonable amount of time to enable to them to work with it.
A felony is a crime where the maximum punishment is over one year of incarceration. The legal distinction between a felony and a misdemeanor is the potential duration of incarceration, but the collateral consequences of a felony can be much greater for a person who is convicted of those crimes.
Even if a felony does not result in incarceration, it will still disqualify individuals from many of their rights as citizens. A felony conviction will show up on background checks, which may be necessary for employment or to live in certain residences.
A felony conviction can impact an individual for the duration of their life. It is important for an attorney to be aware of all the possible consequences of a felony conviction. An experienced and knowledgeable attorney will seek possible avenues for a reduction of felony charges wherever possible. An attorney will also ensure that the Commonwealth Attorney will be able to carry their burden to prove each element of the felony beyond a reasonable doubt before agreeing to plead guilty and create a felony conviction for the defendant.
Felonies in Virginia range from grand larceny, which is theft of items of value over $200.00, or an item of value of over $5.00 which is taken directly from the person, all the way up to very serious charges such as rape, homicide, and other offenses of that nature. Any offense that is punishable by over a year incarceration is a felony, regardless of the actual punishment imposed.
Forensic evidence is scientific evidence. Any type of scientific evidence is classified as forensic evidence; it can be anything from ballistic evidence in a homicide case or DNA evidence in a murder or a rape case, to digital evidence in cases involving computer crimes. Sometimes, it even comes into play in misdemeanor cases, especially driving while intoxicated cases.
Any defendant who is arrested for driving while intoxicated has the right to certain records, from the Virginia Department of Forensic Science, related to testing of that defendant’s breath or blood sample upon arrest. An attorney will be able to obtain this evidence and determine whether it potentially is exculpatory for the defendant. If it is, that attorney may advise his client to retain an expert witness to testify about the scientific bases for why the evidence may support the defendant’s case.
Examination of forensic evidence can be very expensive so it is important for any attorney to be able to identify the impact that the forensic evidence may have, to evaluate the cost of getting that evidence included into the case, and to make the determination of whether it is worth it for the defendant to seek the inclusion of this evidence, or to seek the exclusion of the evidence as the case may be, through forensic analysis and expert testimony.
Grand jury is a top constitutional requirement for the prosecution of felony cases. However, this is also something of a formality in a practical sense.
At the grand jury, only the prosecution is able to present evidence. They can present any evidence they have regardless of whether or not it would be admissible at a national trial and they can present any witnesses they may have regardless of whether or not those witnesses would be allowed to testify at trial.
At the conclusion of the evidence, the grand jury will evaluate to determine whether probable cause exists to find if an offense was committed by the defendant. It is easier to meet this standard than the standard of beyond a reasonable doubt which is required to find the defendant guilty.
If the grand jury determines that probable cause exists, they will return what is known as the true bill or an indictment, which authorizes the case to be tried in the circuit courts. The first appearance that the defendant will make in the circuit court comes after the indictment has been returned, at which time the defendant and his attorney, if one has been retained, will show up in what is known as term date to set a date for a trial and determine whether or not the trial will proceed by jury or at a bench trial.
In Virginia, one added right that the defendant does have is the right to a preliminary hearing in felony cases in the general district court. This like the grand jury is a hearing on probable cause but in the preliminary hearing, both sides are given the opportunity to present evidence to a judge and as a practical matter, the determination of probable cause is often what will stand. This still provides the defendant an opportunity to gain evidence or knowledge that could potentially be presented and used against him or her at trial.
Habeas corpus means “to hold the body”, in Latin. There is a provision whereby individuals who are convicted of offenses and incarcerated through unlawful means, such as a process that was fundamentally unfair or fundamentally flawed, can be entitled to a court order demanding their release or a new trial. This order is known as a Writ of Habeas Corpus.
Attorneys for those individuals, or the individuals themselves, can petition for a Writ of Habeas Corpus; if there is an issue that they learn of that did not relate to the direct appeal of the case, such as ineffective assistance of counsel, misconduct by a judge or a prosecutor, or in certain circumstances, the discovery of false testimony by witnesses under coercion or duress.
Unlike direct appeals, habeas corpus appeals do not arise from objections that were made at trial. For a direct appeal to occur, the issue being appealed must have been identified by the attorney at trial and subjected to some specificity in order to preserve the right to that appeal.This requirement does not exist in habeas corpus proceedings because most of these cases do not involve anything that actually occurred on the record at trial; rather, they involve other considerations that rendered the process unfair.
An indictment is a document returned by a grand jury, which states that probable cause exists to charge an individual with a crime. The indictment is the formal initiation of prosecution in the circuit courts.
If no indictment is returned, then the case cannot proceed.
Typically, the indictment will come after the conducting of a preliminary hearing in general district court. However, in some cases, particularly those where due to whatever reason the prosecutors were forced to dismiss a case without prejudice, they will return to re-prosecute the case anew in circuit courts through a direct indictment.
In these circumstances, the defendant may be unaware that he or she is facing charges until they are presented with a summon or arrested by a bench warrant because of the indictment.
Interlocutory appeals are not seen very often in criminal cases. Interlocutory appeals occur in the middle of a trial whereby the parties believe that the determination of a legal question is so important that it will affect the duration of the trial, and that an objection to the trial court ruling must be considered by an appellate court immediately to enable the process to be able to proceed fairly. Often, this will happen with circumstances such as the admission of evidence in a civil trial. Interlocutory appeals can occur in criminal cases although they rarely do.
Miranda rights comprise the right to be advised of the Fourth, Fifth, and Sixth Amendment rights that a defendant has in the criminal process. Miranda rights, essentially, originated in the 1966 U.S. Supreme Court case, Miranda vs. Arizona. In that case, the Court held that if a defendant in a criminal case is not aware of his rights, such as the right to remain silent and the right to an attorney, then those rights are, as a practical matter, not effective.
For a defendant to be treated with fundamental fairness, as required by due process, the defendant must be advised of his or her rights at the time of arrest; if he is not advised of these rights, then evidence obtained subsequently can be suppressed by the court.
Once a suspect is arrested, the police are required to inform the suspect of the right to remain silent under the Fifth Amendment, and the right to an attorney under the Fifth and Sixth Amendments. If this warning is not given by the officer, the defendant is presumed not to be aware of these rights, and therefore, unable to waive them. If a defendant is given this warning, then it is possible for the rights to be waived. However, a skilled attorney will be able to advise the defendant on whether or not doing so is in his or her best interest. Any “un-Mirandized” evidence obtained after arrest, such as the statements to the police, would be subject to exclusion from trial.
A misdemeanor is a lesser crime where the maximum punishment for the offense is one year in jail or less. There are a lot of common misdemeanors in Virginia. Among the most common are driving while intoxicated, reckless driving, possession of marijuana, and petit larceny. Reckless driving is a good example of a common misdemeanor charge in Virginia, although a lot of people do not realize that reckless driving is a misdemeanor criminal offense. A misdemeanor can carry a possible jail sentence of up to a year.
Nolo contendere means no contest. This is a plea that can be answered by a defendant in a criminal case wherein the defendant does not admit that he or she committed the crime or is guilty of the crime, but only that he or she believes that the evidence could be sufficient for the prosecution to prove that the defendant’s is guilty beyond a reasonable doubt.
In a nolo contendere plea, as a practical difference, the defendant typically will not be required by the courts to elocute facts sufficient to establish the elements of the offense. The defendant’s plea will generally be accepted in more of a pro forma sense and with the admission that the evidence is sufficient to convict, the defendant will not necessarily be required to admit to each of the elements in open court.
In Virginia, like most states, the primary benefit of a no contest plea is not present.
In most states, a plea of no contest means that the defendant is not admitting to guilt in such a manner that it could be used as evidence against him or her in a subsequent civil or criminal proceeding.
However, in Virginia by statute, a no contest plea is the same as a guilty plea for these purposes and the defendant’s plea of no contest can be used as evidence in a civil trial involving, for example, liability in a car accident.
Because of this no contest plea, it doesn’t carry a real advantage and in some cases could serve to disadvantage a defendant if a judge may contemplate it as failure to accept responsibility and weigh that against the defendant when issuing a sentence or imposing a sentence.
Permissible inference is where a finder of fact is permitted to infer the existence of one fact from the existence of another.
The most common permissive inference in Virginia Code is the permissive inference that if a driver has a Blood Alcohol Content of 0.08 at the time of driving, they are considered intoxicated and are in violation of the Commonwealth driving while intoxicated statute because the purposes and elements of the crime are not a rebuttable presumption.
Because having the Blood Alcohol Content of 0.08 is an element of the offense of DWI, the defendant does not, strictly speaking, carry any burden to rebut or prove that the element was not present, however as a practical matter, the presence of a Blood Alcohol Content of 0.08 with nothing further will allow a judge or a jury to determine that the defendant was intoxicated.
Permissive inferences are constitutionally permissible. Rebuttable presumptions, however, are not because they violate the constitution through process clause.
A plea deal is an agreement between the defendant and the prosecution to resolve the case on certain terms that are agreeable to both sides. Often, defendants may face multiple charges and agree to plead guilty to one of these charges in order to have other charges dismissed or reduced. Likewise, a defendant may plead guilty to a lesser offense than the one he or she is charged with in order to receive a lesser punishment. Sometimes, the parties may just agree to a guilty plea on the charged offense in order to avoid trial if they agree on the recommendations for punishment.
It is important to note that the prosecution’s recommendation on punishment is only a recommendation and that judges are not bound to impose a sentence that is agreed upon by the prosecution and the defendant.
The entire plea agreement is contingent on the court accepting it, and in order for that to happen, the judge must be satisfied that the agreement is valid, that the defendant will admit to the elements of the crime to which he is pleading guilty, and that evidence is sufficient to find the defendant guilty of that charge.
Often, if a sentence is recommended by the prosecution after a plea agreement, the court will accept that sentence and impose it. However, it is essential for an attorney to inform the client that the judge is not bound to these terms, and that accepting the plea deal contains certain risks such as the risk of an imposition of a sentence greater than what the parties had negotiated.
Probable cause is the constitutional standard that is required for law enforcement to conduct a search or an arrest of a suspect. Probable cause is generally tied with the requirements that the government receive a warrant approved by a neutral arbiter – either a magistrate or a judge – to allow searches and seizures.
However, in many circumstances, there are exceptions to the requirements of the warrant and so, probable cause need only be established by the officer’s own testimony of clear and articulable facts existing at the time of the search or arrest to support the officer’s determination of probable cause.
Probable cause does not mean that the person being searched or arrested has committed a crime. Probable cause does not have any bearing on the determination of guilt or innocence of that person, if and when, that case proceeds to trial.
Probable cause merely means that the officer who searches or arrests the suspect can identify articulable facts and circumstances that, to a reasonable police officer, would support the notion that a crime is being committed.
Probable cause, ostensibly, is subject to several layers of review if the officer will, in fact, be able to articulate probable cause at the time of the arrest. If the arrest or the search is made, the determination of probable cause will be reviewed at the detention facility if the individual is arrested and taken in. Subsequently, if the case is a felony, it will be reviewed by a judge of the General District Court at a preliminary hearing, which is a statutory right that defendants in Virginia are entitled to except in certain exceptional circumstances.
In misdemeanor cases, defendants and their attorneys can file a motion to strike evidence on the basis of lack of probable cause. However, as a practical matter, these motions will generally be heard by the same judge who will be determining guilt and innocence. The problem presented with this system is that the judge is meant to interpret evidence related to probable cause when there are different standards for evidence related to guilt. People are people and it may be hard to draw the line between those two factors for some judges.
In a felony case, once a judge has determined that a probable cause exists in the preliminary hearing, there is another layer of review which the grand jury employs to test for probable cause in order for the case to proceed to the Circuit Court.
However, the grand jury process is very one-sided. The prosecution alone gets to provide evidence and witnesses, and only their side is considered. As a practical matter, very, very few cases are dismissed based on a lack of probable cause at this point in the process.
A protective order is a civil order of the court, which is designed to protect the safety of a person who is established to have, or who has a reasonable, fear for their own safety and well-being from an individual. The protective order is issued by the court in order to impose conditions on the person who has had the protective order filed against him or her.
As a matter of course in Virginia, domestic assault cases can result immediately in the issuance of an emergency protective order, which prohibit contacts between the perpetrator or the suspect and the victim for a period of three days.
Between the issuance of the emergency protective order and its expiration, the party may go to the court and seek a preliminary protective order. A preliminary protective order imposes the conditions of the protective order as the court determines reasonable for a period of 30 days at which point, the person who is in fear will have the opportunity to potentially retain counsel to investigate and determine whether it is worth pursuing a more permanent protective order.
A preliminary protective order is issued in what is known as an ex parte proceeding where only the party seeking the protective order will be appearing in front of the court and making the arguments. Only the statements of that side and the evidence presented by that party are considered by the court.
For a full protective order to be issued, there will be a full hearing in the court with both sides given the opportunity to present evidence and testify. At this point, the court can reconsider the protective order or can issue it for a period of time up to two years.
The protective order is an important tool for prosecutors, particularly in domestic assault cases, because the if the conditions of the protective order are violated it will lead to additional criminal charges for defendants. Often the consequences of violating a protective order can be as great or greater than the consequences which can arise from a criminal conviction. This is due to the impact the violation can have as it relates to security clearances, background checks, and other security matters.
If a defendant is facing a protective order, it is important that his or her attorney advise on all of the conditions. The attorney should ensure the client understands the conditions put upon them and advise on ways to avoid violating these conditions. The attorney must also evaluate the case and present a strong argument for the defendant in order to avoid having a permanent protective order put in place due to the severity of obligations that such an order possesses.
Reasonable suspicion is a lower standard than probable cause. Reasonable suspicion is the standard that a law enforcement officer must demonstrate in order to make a limited search of an individual, and briefly restrain his or her liberty.
For example, the stop-and-frisk policies that some police departments institute in high-crime areas are authorized by the Supreme Court to be conducted on the basis of reasonable suspicion. Traffic stops, also, only require a reasonable suspicion of wrongdoing for the officers to briefly stop the individual and conduct a limited search.
In theory, the rationale behind instituting such a low standard for this limited search is to protect officers from individuals who may have weapons. However, if this search is conducted, evidence of other contraband, that is not necessarily dangerous, can still be introduced against the defendant regardless of the fact of whether that was the item being searched for; as long as the search and stop was deemed reasonable. Unfortunately, many judges will give great deference to police in determining whether a stop was reasonable, and will often give officers the benefit of a great many doubts.
Reasonable suspicion does not equate to carte blanche for the officer. The officer still does have the obligation to be able to articulate the reasons for the search and, based on the totality of the circumstances, must be able to identify that he or she has some suspicion that articulable wrongdoing may have been about to occur. If the officer cannot do that, then evidence obtained during one of these searches could potentially be suppressed.
Remand means “return”. The Court of Appeals or the Virginia Supreme Court will review the ruling of the trial court and, if it determines that that ruling was incorrect, it may instruct the trial court on what it needs to do to correct its error, and then remand, or return, the case back to the trial court. In this instance, the case will be re-conducted, but with the instructions of the appellate court taken into consideration and applied.
Remand can also mean the return of a defendant in a criminal case to the custody of the Commonwealth or the sheriff of a particular jurisdiction if and when the defendant is sentenced to jail or prison.
Search and Seizure
A search is just an inspection of a person, or a place, or a thing, conducted by law enforcement where the person who is being searched, or whose property is being searched, would normally have a reasonable expectation of privacy. A seizure is an arrest, either full or for a limited duration, of an individual which restrains that individual’s liberty.
Searches and seizures must be supported by probable cause with some exceptions for limited searches, which require only reasonable suspicion. If they are not supported by probable cause, aside from these exceptional circumstances, the searches or seizures are unreasonable under the Fourth Amendment and evidence seized during those searches and seizures may be suppressed.
In general, in order for a search to occur, law enforcement must have a warrant, issued by a judge or a magistrate, which identifies, specifically, the person or items to be searched and limits the search to that person or those items.
Exceptions exist where there are exigent circumstances, such as when law enforcement believes that a defendant is in the process of destroying evidence, or may be a danger to other people that surround him or her.
A skilled attorney must be aware of what these exigent circumstances are to identify whether or not those circumstances were present if the defendant was searched without a warrant, if they were not, an attorney can craft an argument as to why they were not; then, the results of that search may be suppressed as evidence.
Seizures also must be based on probable cause. However, the requirement for a warrant is not nearly as strict for arrests as it is for searches. In a felony case, there is no requirement for a warrant to arrest a defendant unless the defendant is arrested in his or her home.
While most misdemeanors require a warrant to arrest, there are some which do not. Driving while intoxicated does not require a warrant for an arrest; many types of larceny cases, as well, do not require a warrant for an arrest. However, the seizure still must be based on probable cause and the officer must be able to accurately identify facts and circumstances which would lead him or her to believe that a crime was being committed by the defendant.
If a search warrant is issued, then the officer who has requested that warrant is authorized to conduct a search consistent with the warrant. If the search warrant involves a search of an individual’s residence, it may be in that individual’s best interest to retain an attorney to review the warrant and ensure that it was properly executed.
Likewise, an attorney will review the facts and circumstances of any search that was conducted incident to the arrest or based on probable cause, in order to determine whether that search was valid and whether the evidence obtained should be admitted against the defendant.
Sentencing guidelines exist in both Virginia and the federal system and attempt to make sentencing more uniform and fair. This is in order to ensure that a great disparity does not exist between similar defendants committing similar crimes, as well as the punishment for an offense is sufficient, but not excessive to achieve the societal aims.
The sentencing guidelines in both federal and state court take into account factors such as the nature of the crime committed and the criminal history or lack thereof of the defendant who is convicted of that offense and also take into account other factors such as acceptance of responsibility, restitution made, and things of that nature in order to determine what is a fair sentence to impose.
Judges have discretion whether or not to impose a sentence within the guidelines, but in the federal system, if the sentence is outside of the subscribed guidelines, they are required to give a reason for the decision and put that on the record.
One negative consequence of the sentencing guidelines in Virginia is that they are only applicable in bench trials. Many times, a defendant will want the case to proceed to a jury trial where sentencing guidelines are not applicable.
Jurors who are hearing the facts of the case and determining guilt or innocence will also impose the sentence on the defendant and they will do so without being informed of the sentencing guidelines and the guidelines whence it would be applied.
Now this can come back to haunt the defendant for many reasons. The statutory penalties for many offenses are much greater than what the guidelines may prescribe.
For example, a conviction for embezzlement may carry a guideline recommendation of one year in jail, but the statutory punishment range is from one to 20 years. A jury will typically not be given any guidance on the application of these guidelines. For example, the jury may assume a five-year sentence to be rather light when, in reality, it could be extremely harsh in certain circumstances.
Due to this disparity and because Virginia requires it in order for a trial to proceed before a judge, both the defendant and prosecution must agree to it. Oftentimes, prosecutors use the requirement of a jury trial and a jury sentencing as leverage to induce guilty pleas from defendants who may fear receiving a harsher sentence from a jury if they are convicted than they would receive from a judge if they plead guilty to the offense.
Statute of Limitations
The statute of limitations, in the civil and the criminal context, is the length of time the plaintiff or prosecution has to initiate a case starting from the time that the event giving rise to the prosecution occurred or was discovered.
For most felony cases in Virginia, there is no statute of limitations. However, for misdemeanors, generally the statute of limitation is one year from the occurrence of the offense.
There are exceptions. For example, petty larceny cases can be prosecuted up to five years from the occurrence of the offense.
The statute of limitations is not to be confused with the requirements of a speedy trial, which provide for limits on the amount of time that the prosecution may take from the determination of probable cause until initiation of trial. These requirements are also provided by statute, but are subject to different considerations than the statute of limitation for prosecution.
A subpoena is a document that can be issued either by the court or by an attorney, which compels an individual to appear at court, produce documents, or other evidence at court.
Subpoenas, in most cases, are used to compel testimony of witnesses. In criminal cases, all the parties, the judge, the courts, the prosecution, and the attorneys for the defendant have the power to compel the appearance of witnesses.
In misdemeanor cases and preliminary hearings in general district court, additionally all parties have the authority to compel the production of certain documents subject to some limitations by statute as evidenced.
In cases involving larceny, for example, security videos could be considered documents that could be subpoenaed. However, in the circuit courts, the subpoenas requiring production of documents or subpoenas must be approved by the judge and cannot be issued by the attorney alone.
The person who issued the subpoena is legally required to appear at the date and time listed on the subpoena. Failure to do so is contempt of court and can result in that party being compelled to appear at circuit court hearing and demonstrate why he or she did not comply with the subpoena or be subject to punishment.
Voir dire means, roughly, “to tell the truth”. Voir dire is the process where the sides in a case, be it criminal or civil, are able to pose questions for potential members of the jury in order to expose any biases that they may have that would render them incapable of considering the case.
Voir dire, in a jury trial, is considered by some to be the most important component of the trial because it could be possible that pre-existing biases could go against the defendant, even one who may have the law on his or her side.
Attorneys need to take advantage of this process by asking questions related to issues that are important in the case. It is important to gauge the way that jurors may feel about the issues of the case, to get a feel for each individual’s beliefs, ways to possibly target arguments at individual jurors, and to identify red flags that would lead an attorney to determine that the juror should not be sitting on the case.
Voir dire also exists for the examination of potential expert witnesses. There are rules in place that govern whether an expert is allowed to testify and to what extent. In order for the expert witness to testify, they must be qualified to testify on the subject on which they are offering testimony. The courts will have to determine whether the expert witness is appropriately qualified through the voir dire process, whereby attorneys ask questions about that expert’s qualifications and opinions in order to determine whether or not he or she should be allowed to testify.