9.1 Sequence of a Typical Criminal Case

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.1 SEQUENCE OF A TYPICAL CRIMINAL CASE

The sequence of a criminal case will vary depending upon whether the accused is charged with a felony or with a misdemeanor. The sequence described below also may vary depending on such factors as plea bargaining and waiver by the accused of various steps in the process.

The first major step directly involving the accused is the arrest. An arrest may be made with or without a warrant or upon a "capias" issued by a court. ²

Regardless of the nature of the arrest, the accused is then taken before a judicial officer or magistrate. ³ The magistrate determines the conditions for pretrial release ⁴ and, if the accused has been arrested without a warrant, determines whether there is probable cause to believe that the accused committed a criminal offense. ⁵ If probable cause is found, the magistrate must issue an arrest warrant. If the accused has been arrested under the authority of a capias or arrest warrant, the magistrate should also determine that the individual is the person named in the capias or warrant.

The magistrate can set bail and bond for the accused. Bail means the pretrial release of a person from custody upon the terms and conditions specified by order of an appropriate judicial officer, and bond means the posting by a person or his or her surety of a written promise to pay a specific sum, secured or unsecured, ordered by an appropriate judicial officer as a condition of bail to assure performance of the terms and conditions contained in the recognizance. ⁶ An accused shall be admitted to bail by a judicial officer,

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unless there is probable cause to believe that the accused will not appear for trial or hearing or at another time and place as may be directed or the accused's liberty will constitute an unreasonable danger to himself or herself or the public. ⁷ In fixing bail, the magistrate must take into account certain statutory factors. ⁸ There are certain offenses that are statutorily presumed against bail or bond. ⁹ If the magistrate sets no bond for the accused, the accused can file a motion with the court to allow bail and bond.

After the appearance before the magistrate, the accused is brought before a judge of a sitting district court, who may reconsider the accused's bail and bond and who determines whether the accused, if indigent, is entitled to the appointment of counsel or whether the accused will retain counsel. ¹⁰ However, if the arrest order was made by a circuit judge, the accused is brought before that judge as soon as possible, but no later than three calendar days, excluding Saturdays, Sundays, and holidays. ¹¹ If the charge is a misdemeanor and the accused waives his or her right to counsel, the district court judge can try the case (if the accused and the Commonwealth are prepared) or sets the case for trial. ¹² If the offense is a felony, and the accused waives his or her right to counsel, the district court judge can conduct the preliminary hearing (if the accused and the Commonwealth are prepared) or set the case for a preliminary hearing. ¹³

At the preliminary hearing, the district court, upon a finding of probable cause, "certifies" all or one or more of the felony charges to the circuit court for grand jury consideration, dismisses all or one or more of the charges, or reduces to a misdemeanor all or one or more of the charges. ¹⁴ If one or more of the charges are reduced, the district court may proceed to try the case or set the case for trial. ¹⁵

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If one or more felony charges are certified for grand jury deliberation, the grand jury considers bills of indictment prepared by the commonwealth's attorney, determines whether as to each bill there is probable cause to indict, and makes its return. ¹⁶ If the grand jury concludes that sufficient probable cause exists, it returns a "true bill."

If a true bill has been returned by the grand jury, an arraignment is held in the circuit court. The arraignment consists of reading the charge on which the accused is to be tried and calling on him or her to plead to the charge. ¹⁷ The accused may plead guilty, not guilty, or nolo contendere. ¹⁸ If the accused pleads not guilty or refuses to enter a plea, the case is set for trial. If the accused enters a plea of guilty, the court can hear and determine the case without a jury and can determine punishment, but usually the sentencing date is continued to a later date. ¹⁹

If the case is set for trial, there are certain motions, objections, and notices that the defense must make or file before trial. Failure to raise certain objections to prosecution before trial may result in waiver, unless good cause can be shown. ²⁰ In addition, the accused may make other motions that may be determined without trial of the general issue, as well as motions relating to discovery. ²¹

The trial of a felony or the appeal of a misdemeanor conviction is in the circuit court, and the case must commence within specified statutory time limits. ²² The...