3.3 Criminal Defense

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

3.3 CRIMINAL DEFENSE ¹⁰³¹

3.301 Introduction to the Criminal Process.

A. Concepts and Objectives of the Criminal Process.

The American system of criminal procedure is both accusatory and adversary. Because it is an accusatory system, the burden is on the government to accuse the defendant and thereafter to prove the defendant's guilt. Because ours is an adversary system of justice, each side is permitted to present all available evidence in its favor and make arguments in support of its position; thereafter, the judge or the jury will make the ultimate decision. A major postulate of the system is that each side should have a relatively equal opportunity to present its position.

The federal and state systems of criminal procedure must, as a minimum, meet the requirements of due process. Although difficult to define, due process has two main objectives. One objective is that in the vast majority of cases the criminal process will achieve reliable results—the guilty will be convicted, and the innocent will be acquitted. A conflict arises about the degree to which the system should ensure that an innocent person will not be convicted, since any increase in safeguards designed to reduce the likelihood of convicting the innocent makes the system more elaborate, more time-consuming, and more costly, and inevitably results in some guilty persons being acquitted.

The second objective of due process is more difficult to describe. Many aspects of the system are not at all concerned with reliability but, instead, are aimed at the protection of a person's dignity and privacy or his or her individuality. For example, if the police search a person's home and find contraband, this evidence is without a doubt reliable evidence against the individual. However, something other than reliability is clearly at stake in determining the circumstances under which the police should be permitted to search an individual's home. ¹⁰³²

B. The Source of the Law.

1. Constitution, Laws, and Treaties of the United States.

Article VI of the United States Constitution, the "supremacy clause," establishes that the various constitutional guarantees provided in the Bill of Rights and elsewhere are binding on the states. Although the United States Constitution is most frequently the source of federal law affecting the criminal process, some federal statutes and treaties also operate on the states in the context of criminal proceedings. The most prominent example of this is the federal wiretapping statute. ¹⁰³³

The primary source of federal law governing state criminal proceedings remains, however, the Bill of Rights, and in particular, the Fourth, Fifth, Sixth, and Eighth Amendments. Through the process of "incorporation," most of the guarantees in these amendments have been made binding on the states through the Fourteenth Amendment.

The history of the incorporation process covers a span of nearly 100 years, and today the provisions binding on the states include: the search and seizure provisions of the Fourth Amendment, ¹⁰³⁴ including the exclusionary rule; ¹⁰³⁵ the Fifth Amendment prohibitions against compulsory self-incrimination ¹⁰³⁶ and double jeopardy; ¹⁰³⁷ the Sixth Amendment guarantees of the right to a speedy ¹⁰³⁸ and public trial ¹⁰³⁹ by an impartial jury, ¹⁰⁴⁰ to confront and cross-examine witnesses, ¹⁰⁴¹ to have compulsory process, ¹⁰⁴² and to have the assistance of counsel at state expense; ¹⁰⁴³ and the Eighth Amendment prohibition against cruel and unusual punishment ¹⁰⁴⁴ and excessive bail. ¹⁰⁴⁵ In addition, many constitutional guarantees nowhere specifically mentioned in the Constitution have been found to be within the general concept of due process and thus binding on the states, including the requirement that states carry the burden of proving of all essential elements of the crime beyond a reasonable doubt. ¹⁰⁴⁶

The process of incorporation, although nearly complete, has created another problem: whether the incorporated Bill of Rights provisions apply to the states to the same extent as they apply to the federal government. The history of incorporation of the right to a jury trial illustrates the problem because the issue of whether a criminal jury verdict had to be unanimous in state court was an anomaly. In Duncan v. Louisiana, ¹⁰⁴⁷ the Supreme Court held that the states are constitutionally required to provide jury trials in all "nonpetty" offense cases. The question then arose whether previous interpretations of this right, developed in federal criminal prosecutions, are also binding on the states. Specifically, the Court was confronted with the question of whether the right includes the right to a twelve-person, unanimous jury verdict which earlier federal cases had assumed was part of the constitutional right to a trial by jury. In Williams v. Florida, ¹⁰⁴⁸ the court held that a twelve-person panel is not, in fact, an essential feature of "trial by jury." Subsequently, in Apodaca v. Oregon, ¹⁰⁴⁹ the Court held that a unanimous jury verdict is not constitutionally mandated by the Sixth Amendment. But most recently, in Ramos v. Louisiana, ¹⁰⁵⁰ the Court reversed this line of cases, and, recognizing that the underlying policies were traceable to a state's racial animus, disapproved of jury verdicts in state court that were not unanimous for conviction of criminal defendants. Thus, the question of whether incorporation includes the "bag and baggage," "jot-for-jot," and "case-for-case" of earlier federal decisions is more certain.

2. Virginia Constitution.

The Virginia Constitution contains an extensive list of guarantees that affect criminal prosecutions, most of which parallel the provisions of the Bill of Rights in the United States Constitution. Under section 8 of article I of the Virginia Constitution, the accused is entitled to demand the cause and nature of the accusation, to be confronted with his or her accusers and witnesses, to call for evidence in his or her favor, to have a public and speedy trial, to have an impartial jury of his or her vicinage without whose unanimous consent he or she cannot be found guilty (provided that in nonfelony offenses he or she may be tried in a court not of record without a jury as long as the accused enjoys the right of appeal in a court of record with a jury), and may not be compelled to give evidence against himself or herself or be twice put in jeopardy for the same offense. In addition, the Virginia Constitution prohibits excessive bail and fines, cruel and unusual punishment, ¹⁰⁵¹ bills of attainder, ex post facto laws, suspension of the writ of habeas corpus, ¹⁰⁵² and general warrants of search and seizure. ¹⁰⁵³

While the decisions of the United States Supreme Court interpreting the United States Constitution are binding on the states and constitute the minimum standards that must be met, the power of the individual states to confer greater or broader rights in criminal cases under the provisions of their respective constitutions and laws is unaffected by United States Supreme Court cases. The states, however, may not use the United States Constitution as the source of the greater rights if the higher standard conflicts with a decision of the United States Supreme Court interpreting the United States Constitution. ¹⁰⁵⁴

3. Virginia Code of Criminal Procedure.

Title 19.2 of the Virginia Code, adopted in 1975, is the primary source of statutory provisions governing the criminal process. Separate statutes governing the procedures to be used in cases involving juveniles accused of criminal conduct are contained in section 16.1-226 et seq. of the Virginia Code. ¹⁰⁵⁵

4. Rules of the Supreme Court of Virginia.

Part 3A of the Rules of the Supreme Court of Virginia governs criminal proceedings in circuit court, juvenile and domestic relations district court (except proceedings concerning a child in a juvenile and domestic relations district court), and before a magistrate. Parts 7A and 7C apply to criminal and traffic proceedings in general district court, and Part 8 applies to all proceedings in juvenile and domestic relations district court. While the Supreme Court attempts to keep rules current and consistent with statutory law, whenever a rule conflicts with a statute, the statute controls. ¹⁰⁵⁶

C. Classes of Offenses.

While the subject of substantive crime generally exceeds the scope of this discussion, the following classes of offenses and their punishments are noted from sections 18.2-8 through 18.2-11 of the Virginia Code:

1. Felonies.

a. Class 1: Imprisonment for life, ¹⁰⁵⁷ and a fine of not more than $100,000;

b. Class 2: Imprisonment for life or any term not less than 20 years, and a fine of not more than $100,000;

c. Class 3: Imprisonment of not less than 5 nor more than 20 years, and a fine of not more than $100,000;

d. Class 4: Imprisonment of not less than 2 nor more than 10 years, and a fine of not more than $100,000;

e. Class 5: Imprisonment of not less than 1 nor more than 10 years, or confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both; and

f. Class 6: Imprisonment of not less than 1 nor more than 5 years, or confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

Virginia has also developed a series of mandatory sentences. These are generally imposed for firearm violations, ¹⁰⁵⁸ domestic violence, and driving under the influence. Enhanced sentences may also be based on prior convictions, usually for drug-related crimes and some crimes of violence. Counsel must understand and communicate to the client any mandatory sentence that may be imposed. The existence of a mandatory sentence may influence a client's decisions concerning whether to plead guilty or not guilty and may influence plea negotiations. Counsel must also understand the manner in which mandatory sentences affect the calculation of sentencing guidelines.

2. Misdemeanors.

a.

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