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It is your constitutional right to remain silent. You might be familiar with the phrase “anything you say can and will be used against you." It is the absolute truth! This warning comes from a famous Supreme Court case called United States v. Miranda. This is one of several warnings called “Miranda warnings."
The police use many tactics to persuade you to talk. Sometimes, the police threaten they will charge you with more serious crimes if you do not talk. Sometimes the police will give the impression that if you explain yourself then maybe you will not be charged with a crime. The police will act friendly and sometimes even joke around with you. These are lies designed to harm you. If this happens to you, do not talk to the police. You have too much at stake to make any statements at all. Your only response should be to politely, but firmly, state, “I want an attorney".
Remember, anything you say, from idle chit-chat to a formal statement, can and will be used against you by the police, prosecutors, juries, and judges. You have the right to be silent so USE IT!
If you have been arrested, it is critical that you contact us immediately. Having a lawyer involved as early as possible in the case protects you from making statements to the police or witnesses that could later be used against you. Also, we can begin investigating the case while witnesses’ memories are fresh and evidence is more easily obtained.
If you have not been arrested but you think that the police might be investigating you about your involvement in a crime, now is the time to contact us. We can contact the police officer, or the detective or the prosecutor and work to try to prevent charges from ever being filed. You cannot do this alone without risking that your statements will be used against you later. The sooner you hire us, the more likely you will have a positive outcome. Remember, never meet with a police officer without an attorney.
If you have been told by law enforcement that they have a warrant for your arrest; you should contact us ASAP. We can speak to the magistrate about releasing you on favorable terms (such as personal recognizance or a low bond), and prevent the police from obtaining statements from you.
Once arrested, you will be booked. This is the process of taking fingerprints, a photo (or mug-shot), and other formalities associated with booking. A detective or police officer may ask you to make a statement which should be declined. You will then be brought before a magistrate who will decide the initial bond amount, if any. A bond is an amount of money that, if required, must be paid in order for you to be released from jail. The purpose of a bond is to ensure that you appear for all future court dates. The amount of the bond is required by the Constitution to be commensurate with the crime. In other words, a minor misdemeanor such as petit larceny should result in a small bond while a serious crime such as malicious wounding will result in a much higher amount. Other factors are also considered such as whether the court has reason to believe that you are a flight risk or whether you pose a danger to the community. We can help you with this process.
Once an arrest warrant is served, you will be arraigned. An arraignment is a court hearing during which the charges are read to you and you are asked whether you would like an attorney. You should always ask for an attorney. The court will also set the next court date. If you are charged with a crime, you should contact us prior to the arraignment.
Discovery is information in the possession of law enforcement or the prosecuting attorney about the facts of the case which must be revealed to you and your attorney. Examples of discovery are any statements that you made to police or any criminal record you may have. In Virginia, discovery is very limited. Many people are shocked to learn that the prosecutor does not have to hand over very much information. Some jurisdictions are better about the amount of discovery they provide. We know what to expect and demand from each jurisdiction
In every jurisdiction, the prosecuting attorney is required to provide all “exculpatory" evidence. Exculpatory evidence means evidence that tends to prove that you did not commit the crime, as well as any evidence that witnesses have changed their story. An example of exculpatory evidence is if the prosecuting attorney has a videotape that contradicts a witness statement. If such a videotape exists then the prosecutor is required to turn it over to us. Sometimes, prosecutors hide this evidence. We know how to find this evidence and have it turned over to us.
In Virginia, all misdemeanors alleged to be committed by an adult and that do not involve any juveniles or certain family members as alleged victims are initially heard and tried in the General District Court (“GDC"). Examples of misdemeanors that may be heard in GDC are trespass, disorderly conduct, assault and battery, indecent exposure, petit larceny, possession of marijuana, driving while intoxicated, and driving on a suspended license. In this court, you cannot have a jury trial, but you can have a trial before a judge. If you wish to have a jury trial you must first try the case in GDC and then appeal to the Circuit Court where you may ask for a jury trial.
Most felonies alleged to have been committed by an adult and that do not involve any juveniles or certain family members as alleged victims begin in GDC. Examples of felonies that may be heard in GDC are grand larceny, drug possession, malicious wounding, burglary, rape, robbery, and murder. A felony in GDC is set for a preliminary hearing. The preliminary hearing is a probable cause hearing. At the hearing a judge will listen to the evidence and determine if there is a reasonable basis to believe that the charged crime was committed by you. If probable cause is found, the case is certified to be heard by a grand jury that will usually issue an indictment. An indictment simply means that the charge is continued in the Circuit Court. By law, neither you nor your attorney is allowed to be at the grand jury hearing. If probable cause is not found, the case is dismissed but may still be recharged by the prosecuting attorney. In the Circuit Court, the case may be heard before a jury or a judge. Both you and the Commonwealth’s Attorney have a right to a jury in Virginia.
All misdemeanors and felonies alleged to be committed by juveniles (anyone under age 18) begin in the Juvenile and Domestic Relations District Court (“JDR"). There is no right to have a jury trial for these charges unless and until they are heard in the Circuit Court.
Misdemeanors allegedly committed by adults against juveniles or by one family member against another will also be heard in JDR. Examples of these types of misdemeanors are domestic assault and battery and contributing to the delinquency of a minor. Just like in GDC, there is no right to a jury trial but you will have your case tried before a judge. If you wish to have a jury trial, you must first try the case in JDR and then appeal to the Circuit Court where you may ask for a jury trial.
Felonies allegedly committed by adults against juveniles or by one family member against another will have their preliminary hearing in JDR. Examples of these types of felonies are statutory rape, indecent liberties with a child, domestic assault and battery third or subsequent offense, and rape of a child. Just like in GDC, if probable cause is found the case will be certified to the grand jury and heard in the Circuit Court before a judge or a jury.
At trial (judge or jury) the Commonwealth’s Attorney must prove that you are guilty beyond a reasonable doubt. This means that it is not enough to convict you if the judge or jury merely suspects or believes you are guilty. “Probably guilty" is also not enough. The judge or jury must believe that you are guilty “to a moral certainty" which is a very high standard.
During the trial, we are entitled to cross-examine the Commonwealth’s witnesses. However, it is important to know that, in our system, you are not required to do anything at all. You do not have to prove that you are not guilty. The entire burden of proof is on the Commonwealth of Virginia
At the conclusion of the trial, the judge or jury renders a verdict. If the verdict is not guilty, the case is over and the same accusations may never be charged again. If the verdict is guilty you will have a sentencing hearing.
In Virginia, at the conclusion of a jury trial involving an adult, the jury recommends a sentence to the judge. This is an unusual practice across the country. Even after the jury makes its recommendation, you are still given an opportunity to have another sentencing hearing before the judge. However, the judge will often impose the jury’s recommendation. In cases involving a juvenile, the judge always decides the sentence.
Generally, in a Circuit Court case, the final sentencing hearing before the judge is set four to eight weeks after a verdict of guilty.
After a Circuit Court trial, you have a right to appeal the verdict and/or sentence to the Virginia Court of Appeals if there are legal errors that can be raised and considered. Even if you appeal your case, you may still be required to begin serving the sentence imposed pending the appeal or you may be required to pay a bond pending resolution of your appeal.
Habeas Corpus is another type of appeal. It literally means “you have the body" and is a lawsuit filed against the prison warden of the prison where you are serving your time. It is a civil action against the government (who is “holding the body"). A habeas corpus appeal is made by a person serving a prison sentence who wishes to overturn a verdict or seek a particular type of relief.
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