The Process of Prosecution
As a victim or the survivor of a victim, you may feel that you are not part of the process, but you are. How the crime has affected you is an important part of the case. Do not be afraid to ask all the questions you have or to be kept informed each step of the way. You will be asked or allowed to participate at various points throughout the prosecution of the case and later at the defendant's sentencing if he or she is convicted. Additionally, you have rights, which are outlined in the Crime Victim and Witness Bill of Rights.
Arrest
When the defendant is arrested, he is taken to jail, where he will be photographed, fingerprinted, and placed in a cell. Sometimes, as soon as he can after he is arrested, the defendant contacts an attorney who will begin helping him prepare his defense against the charges made against him. Typically, within a day or two after the arrest, the defendant is brought before a judge. At this Initial Appearance, the judge determines whether the defendant wants a court appointed attorney or whether he will hire his own attorney and the judge also sets a hearing date. The victim does not need to be present for the Initial Appearance.
Pretrial Release
After issuing a warrant of arrest, the magistrate determines what conditions of release, if any, are appropriate to ensure that the defendant will appear at trial. Persons are held without bail if the magistrate has probable cause to believe the individual will not appear for trial or if his liberty will constitute an unreasonable danger to himself or the public.
Absent such a finding, the magistrate can require bond, either secured or unsecured. An unsecured bond means that the individual is simply released on his promise to appear in court for trial and if he fails to appear, he will forfeit a specified amount of money to the Commonwealth. A secured bond requires the defendant either to put up money, get a bondsman, or pledge real estate before he will be released from jail and the secured bond will be forfeited if he fails to appear. In addition to monetary requirements for release, a magistrate may place other conditions on the defendant, such as maintaining employment, avoiding all contact with an alleged victim or any potential witnesses, compliance with a specified curfew, or refraining from alcohol or drugs. The magistrate can also place the individual in the custody and supervision of a designated person or the pretrial services agency to insure the defendant's compliance with the terms of his bond. Further, no defendant on bond will be permitted to travel outside the Commonwealth without the permission of the Court.
Persons who fail to appear for trial or fail to comply with the conditions of their bond will be charged with the crime of Failure to Appear. The Commonwealth Attorney may also request that the existing bond be forfeited and that a new warrant be issued for the defendant's arrest.
Attorneys
There are two kinds of attorneys who participate in criminal cases, the Commonwealth Attorney, who prosecutes for the Commonwealth, and the defense attorney, who represents the defendant. If you are considering a civil lawsuit that is based on the same events that led to the criminal charges and have retained an attorney, he may want to follow the progress of the criminal case. Your attorney will not, however, participate in the criminal trial.
Preliminary Hearing
Our criminal justice system has many steps to insure that a defendant is given due notice of the charges against him. The first is the preliminary hearing. At the preliminary hearing, the Commonwealth presents evidence to prove that there is probable cause to believe that the defendant committed the crime with which he is charged. The Commonwealth presents the basic elements of the case against the defendant and the defense attorney is given the opportunity to hearing the evidence and to cross-examine the Commonwealth's witnesses. If the General District Court judge determines, after hearing the Commonwealth's evidence, that there is probable cause, the matter is certified to the grand jury. Occasionally, the defendant will waive his right to a preliminary hearing and the charges will be certified to the grand jury without a hearing.
The preliminary hearing is open to the public. You do not need to attend unless the police or Commonwealth Attorney asks you to or subpoenas you to appear in court. You may wish to attend in order to follow the progress of the case. Your Victim Advocate will keep you informed of all court dates and will accompany you to all hearings.
The Grand Jury
After a case is certified from the General District Court, the Commonwealth Attorney prepares a Bill of Indictment. A Bill of Indictment is simply a formal criminal accusation against the defendant, which is presented to the Grand Jury for their consideration. The Grand Jury consists of between five to seven citizens, who hear evidence presented only by the Commonwealth and determine whether there is probable cause to believe that the defendant committed the crime with which he is charged. Typically, the police investigator presents all the evidence for the Commonwealth and no other witnesses appear. If at least four of the grand jurors find probable cause, they certify the Bill of Indictment as a true bill and the case is sent on to the Circuit Court for trial on the charges as specified in the indictments.
Discovery
Before trial in circuit court, the defendant is entitled to access some of the evidence that the Commonwealth will present at trial so that he may prepare his defense. This phase of the proceedings is called discovery. The defendant may request discovery from the Commonwealth of written or recorded statements or confessions made by the accused, written reports of autopsies or other scientific reports, written reports of a physical or mental examination of the accused or the victim made in connection with a particular case, and inspection of the photographs, books, or tangible objects in the possession of the Commonwealth, if such items are material to the preparation of the defense and the request is reasonable. The Commonwealth also has a constitutional obligation to turn over all evidence that tends to indicate that the defendant is not guilty of the crimes charged. The discovery rules do not authorize the discovery or inspection of statements made by prospective Commonwealth witnesses, or of reports or internal memorandum made in connection with the case, or even the names and addresses of the Commonwealth’s witnesses.
If the defendant requests discovery of scientific reports or of documents or tangible evidence, the Commonwealth is entitled to discovery of any scientific reports the defense may have, the defendant's alibi if he has one, and any defense of insanity that the defendant may present.
Plea Agreements
Many criminal cases do not go to trial, but are disposed of as a plea of guilty, reached after a process of negotiations between the defendant and the Commonwealth during which the defense and the prosecution agree to recommend a certain disposition to the judge. Sometimes the disposition includes an agreement of what the sentence will be. Often the agreement includes only what charges the defendant will be convicted of and the sentence is totally left up the judge.
Many factors are involved in determining whether a case is appropriate for reaching a plea agreement. Although the strength or weaknesses of the case is the principle criteria, the frailty of the victim, the victim’s desire not to go to trial, the sentencing guidelines computations and the defendant’s record are all factors involved in the plea negotiation process.
In these cases, it is extremely rare for the victim to testify. On these guilty pleas, the Commonwealth customarily summarizes the evidence.
It is the policy of the Norfolk Commonwealth’s Attorney’s Office to review all proposed plea agreements with our victims. We like to say that we reach plea “agreements”, but not plea “bargains”. In other words, our plea agreements should achieve our primary goals for the case.
Pretrial Motions
Defendants may file various pretrial motions. These motions may challenge several aspects of the Commonwealth's case, including the indictment, the jurisdiction, and the admission of specific evidence. The defendant may also make motions requesting that he be tried separately from co-defendants or claiming that the prosecution of the particular charge against him is barred because of double jeopardy or the statute of limitations.
The Plea
On the day of trial, the defendant appears before the Circuit Court and the indictment is read to him by the court clerk. The defendant is then asked how he pleads to the charges as read in the indictment. If he pleads not guilty, the matter proceeds as a trial.
If the defendant pleads not guilty, the judge will then make certain that his guilty plea is voluntarily made and that the defendant has a full understanding of its consequences. The judge will then ask the Commonwealth's Attorney for a summary of the evidence that would have been presented had the matter gone to trial so the judge can determine whether there is enough evidence to find the defendant guilty of the charged offense. Witnesses do not testify when a defendant pleads guilty.
Trials
If the defendant does not plead guilty and the case goes to trial, the burden of proof is on the Commonwealth to prove the elements of the crime beyond a reasonable doubt. This is the standard used in the prosecution of all criminal matters in all courts in the United States.
A trial may be held before both a judge and jury (a jury trial) or before a judge with no jury (a bench trial).
Proceedings in a Jury Trial
The defendant, the Commonwealth, or the Court can request a jury trial in any case. In a jury trial, the first step is to select a jury. Both sides are entitled to ask questions of the jury to determine whether any juror has a preconceived bias about the case, the defendant, or the Commonwealth. A juror who has already reached an opinion about the case may be removed from the jury panel. Each side also has the opportunity to make preemptory strikes, eliminating certain jurors on the jury panel. These strikes can be based on a juror's age, occupation, appearance, or response to questioning, but they cannot be based on a juror's race or sex. Through the use of preemptory challenges (alternating between the Commonwealth and defense) twelve jurors are selected for a felony case. In lengthy cases, a judge may impanel alternate jurors, who take the place of any juror who cannot finish hearing the case. Alternates who are not needed are discharged before the jury begins to deliberate.
Once the jury is chosen, both the prosecution and the defense are entitled, but not required, to make opening statements. An opening statement explains to the jury what evidence the attorneys expect to present in the case. Following opening statements, the Commonwealth presents its evidence and then the defense presents its evidence. After all the evidence is presented, the judge will instruct the jury about the charged offense and their duties as jurors. After their instruction, both the Commonwealth and the defense have the opportunity to make closing arguments to the jury about what they believe has been proved in the case and whether the defendant should be found guilty. Following closing arguments, the jury deliberates and arrives at a verdict.
Sentencing
After a jury returns a verdict of guilty in a felony case, a separate sentencing proceeding is immediately held before that same jury. At the sentencing hearing, the Commonwealth is permitted to present evidence of the defendant's prior criminal convictions and juvenile offenses. Victim impact testimony is also allowed at this point in the proceeding. Victim impact testimony is limited to economic loss, the physical or psychological injuries suffered by the victim, any change in the victim's personal welfare or life style, psychological or medical services needed as a result of the offense, and other related information pursuant to Va. Code § 19.2-295.3. The defendant is then permitted to put on evidence in an effort to mitigate or lessen the defendant's culpability for the crimes.
The jury will then retire to deliberate and determinate an appropriate sentence for the defendant. In Virginia, the jury sentences are advisory only. The judge must review the sentence and, if he feels it appropriate, will impose that sentence. The judge cannot increase the jury sentence, but may reduce a jury sentence if the Court finds the sentence to be excessive.
Bench Trial
In a trial to a judge without a jury, the judge hears the evidence and arguments from both the Commonwealth and the defense and makes a finding of guilt or innocence. A bench trial is usually much less time-consuming than a jury trial because there are fewer procedures.
Judge Sentencing
After a judge makes a finding of guilt whether upon a plea of guilty or following a trial, a presentence report is often ordered and the case is continued for the preparation of that report by a probation officer. The presentence report will give the judge details of the defendant's criminal history, as well as his social, educational, work, and family background. It is made available to the attorneys from both sides and the probation officer must be available at sentencing to be questioned concerning the report on the sentencing day. The Commonwealth and the defendant have an opportunity to put on additional evidence and to make arguments about the most appropriate sentence, after which the judge imposes whatever sentence the Court deems appropriate for the crime.
Probation or Suspension of Sentence
In addition to imposing a term of incarceration, a sentencing court can impose a sentence and then suspend all or part of the sentence. For example, in a burglary and grand larceny case, the Court may impose ten years in the Virginia State penitentiary on the burglary charge, and suspend it for five years. On the grand larceny charge, the Court could impose five years in the Virginia State penitentiary and suspend it on the condition the defendant serves twelve months in jail.
Inherent in the authority to suspend the sentence is the power of the court to attach reasonable terms and conditions to the suspension. As in the above example, the suspended sentence of 14 years will then be conditioned upon whatever terms and conditions the Court feels are appropriate. Typically this includes a period of probation. The condition of good behavior is implied in every suspension, with or without probation, so that if a defendant commits any additional crimes he will have to serve all or part of the suspended sentence. The court may also require the defendant, whether on probation or not, to pay his fines and court costs or to pay restitution or reparation to the victims of his crime. If placed on supervised probation, the defendant will be subject to specific rules and regulations established by his probation officer.
Victim Impact Statement
Prior to sentencing in both jury and bench trials, victims are asked to complete a Victim Impact Statement. The Victim Impact Statement gives the victim or others affected by crime, the opportunity to express, in writing, the impact of the crime. This can include any economic losses, the extent of any physical or psychological injuries, and any major life changes as a result of the crime. The Victim Impact Statement is usually a part of the presentence report, however, if a presentence report is not ordered, upon the victim's request, a Victim Impact Statement will be submitted to the court and defense attorney prior to sentencing. Because a copy of the Victim Impact Statement must be provided to the Commonwealth Attorney and the defense attorney at least five days in advance of sentencing, victims are required to return the statement form prior to the sentencing date. The date due will be listed on the statement form. The information requested will assist in evaluating the effects of crime. Va. Code §§ 19.2- 264.4 and 19.2- 295.3 allow crime victims, upon a motion by the Commonwealth Attorney, to testify at the sentencing hearing regarding the offense.
The Appeal Process
Following the conviction and sentence on a felony charge, the defendant is entitled to file an appeal with the Virginia Court of Appeals. The defendant must notify the Circuit Court of his intention to appeal his conviction and then he will be required to provide a copy of the written record of the proceedings from the Circuit Court to the Court of Appeals. The defendant can then petition the Court of Appeals to hear his appeal. The petition of appeal specifies the errors that the defendant alleges occurred in the Circuit Court with case law supporting his position. The Commonwealth then prepares a brief in opposition to the petition of appeal and the Court of Appeals, after reviewing both documents, will determine whether to grant an appeal. All sentences of death must be reviewed by the Virginia Supreme Court and will be granted automatic appeals to that court.
The Court of Appeals may deny a petition for appeal or may grant the appeal. If the appeal is granted, the defendant and the Commonwealth will submit briefs to the court and make oral arguments to the court regarding the case. The Court of Appeals will then decide to either uphold or reverse the Circuit Court conviction. A decision of the Court of Appeals, either to deny a petition for an appeal or to decide an appeal, may generally be appealed to the Virginia Supreme Court in a process similar to the one used to appeal to the Court of Appeals. If an appeal is granted, the Office of the Attorney General handles the case before the Supreme Court.
The Office of the Attorney General has a Victim Notification Program. Under Virginia Law, victims and survivors of victims have a right to be informed of appeals. The Victim Notification Program was formed to help victims and their families understand appellate proceedings. Victims and their families are free to attend any oral arguments and will be provided with the date, time, and place of all oral arguments and will be informed of the Court's decisions. Forms for enrollment in the Victim Notification Program are available at the Commonwealth Attorney's Office, or through the Attorney General's Office.
The defendant may also appeal the decision of the Virginia Supreme Court to the United States Supreme Court if the case involves federal constitutional law.