The Commonwealth of Virginia has different criminal procedures depending on the type and magnitude of the offense. Below is a brief overview of how the criminal court system works for misdemeanor and felony offenses. Find information about the traffic court system here.
Law enforcement can initiate a case through an arrest or through the issuance of a summons, depending on the circumstances. (Warrants of arrest are issued by judges or magistrates.) A police officer can arrest you without a warrant if he or she sees you committing an offense or if there is probable cause to believe you committed a felony offense. You cannot be arrested without a warrant. If the officer did not see you commit a misdemeanor. If you’ve been arrested at home, the police should have a warrant of arrest.
After the arrest is made, you are brought to the police station for processing, fingerprinting, and verification. If you give false information at this stage, you can be charged with an additional offense.
Bond / Bail
The police are required to bring you to a magistrate or judge to determine bail. You are typically allowed bail unless there is reason to believe that you’re a flight risk, that you pose a danger to yourself or the community, or if you’re charged with certain felony offenses.
As soon as you’ve been arrested or know you will be arrested, you should consider securing an attorney to represent you. At Copenhaver, Ellett & Derrico, we are able to review the circumstances around your arrest, such as its lawfulness and whether any of your constitutional rights were violated during the arrest and booking process. Having representation can also be critical to being released on bail.
If your bond is high or if the magistrate or judge did not set a bond, you can hire an attorney to request a bond hearing before a judge. There is rarely a reason to delay a bond hearing for more than a few days. Under the Eighth Amendment of the U.S. Constitution, you have a right that bond not be excessive. If you have ever been charged with failure to appear, receiving or reducing a bond may be more difficult.
Arraignment / First Appearance
An arraignment is your first court hearing, and at this time you are formally read and charged with the crimes for which you’ve been accused. You’ll also be advised of your right to be represented by an attorney. At this time you will let the court know whether you plan to retain or waive representation, or if you request that the court appoint counsel.
If you have already retained an experienced Virginia trial attorney, he or she may – under certain circumstances – appear on your behalf at the arraignment or enter with the court a notice of appearance. This could prevent you from having to attend. If a defense attorney attends the arraignment on your behalf, he or she becomes the attorney of record with the court and is obligated to represent you at trial.
At the arraignment or shortly thereafter, a court date will be set. If you’ve been charged with a misdemeanor, the next court date will be the trial, which is heard in general district court. If you’ve been charged with a felony, the next court date will be the preliminary hearing, which is also heard in general district court.
If you’ve been charged with a felony, a preliminary hearing is held to determine whether there is probable cause to try you for the charges brought against you. At the hearing, the judge hears the prosecution’s evidence only. If probable cause is found, the case goes to a grand jury; if probable cause is not found, the case cannot proceed. (Read more about the felony court process on Circuit Courts.)
A grand jury meets to decide if there is probable cause to maintain the criminal charges brought against you. If probable cause exists, your case moves from general district court to circuit court for trial proceedings. Similar to the preliminary hearing, the grand jury hears only the prosecution’s side of the case and does not determine guilt or innocence.
If the grand jury maintains that probable cause exists, it will issue an indictment, or formal statement of charges, against you. If the grand jury decides that the evidence against you is insufficient, no indictment will proceed. If two grand juries fail to issue an indictment, the case will be dismissed.
Following the arraignment in misdemeanor cases or the indictment in felony cases, your case moves to the trial. Misdemeanor cases are heard and tried in bench trials (trials without juries) at the district court level. Felony trials are eligible for a jury trial.
If you have been charged with a felony and your case goes to a jury trial, the process begins with jury selection. Both the prosecution and the defense have an opportunity to question potential jurors to determine whether or not they are impartial. Attorneys from either side have a chance to remove jurors without cause. The judge can also remove jurors if a juror appears to have a prejudice or prior opinion about the case.
The defense and the prosecution present evidence to the judge (in bench trials) or the jury (in jury trials). At the conclusion of the trial, after both sides have presented their case, the judge or jury will determine your guilt or innocence for the charges. If you are found guilty, the judge or jury will determine your sentence.
If you’re unsatisfied with the outcome of your misdemeanor case in general district court, you have the right to appeal your case. This moves it up to circuit court, and the case will be heard de novo (as if the case hadn’t been tried at all).
If you’re unsatisfied with the outcome of your felony case in circuit court, you can appeal it. However, appealing a case to the Virginia Court of Appeals is discretionary, and it is not a given right. The Court of Appeals reviews the record of legal proceedings from circuit court and looks primarily for technical errors that may have affected a case’s outcome.
Your defense attorney can help you navigate the process of appealing your case’s outcome.