9.6 The Preliminary Hearing

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

9.6 THE PRELIMINARY HEARING

The preliminary hearing is an early screening process that protects a person who is arrested on a felony charge before indictment from the possibility of a long detention on groundless charges. The hearing is held in the presence of the accused before a district court judge, who examines witnesses under oath for and against the accused to determine whether there is "sufficient cause" to charge the accused with an offense. After the hearing, the felony charge is either certified to the circuit court for reference to a grand jury, reduced to a misdemeanor and tried by the district court, or dismissed. The preliminary hearing must take place "as soon as may be practical," which should be construed to mean within a reasonable time after the arrest. ⁴³⁶ At the preliminary hearing, the defendant must not be called upon to plead. A guilty plea entered at the hearing is inadmissible against the accused at trial. ⁴³⁷

The accused arrested for a felony has a statutory but not a constitutional right to a preliminary hearing. ⁴³⁸ Although the Virginia Code states that no person arrested for a felony may be denied a preliminary hearing, ⁴³⁹ a hearing is required only where the accused was arrested before indictment. ⁴⁴⁰ Where the defendant insists on the statutory right to a preliminary hearing, failure by the court to honor this right constitutes reversible error. ⁴⁴¹ Because the requirement of a preliminary hearing in general district court is only procedural and not jurisdictional or constitutional, any defect in connection with the hearing (or lack of one) must be raised before trial or be lost forever. ⁴⁴² Doing so, however, creates a procedural morass. The Court of Appeals has held that when the charge against the accused is terminated by a nolle prosequi order, and the accused is subsequently directly indicted, there is no longer an arrest on a warrant entitling the accused to a preliminary hearing.

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Furthermore, the circuit court is without jurisdiction to determine whether entry of the district court's nolle prosequi order is voidable. ⁴⁴³

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Notes:

^[436] Va. Code § 19.2-183.

^[437] Hammer v. Commonwealth, 207 Va. 135, 148 S.E.2d 878 (1966); Peyton v. Ellyson, 207 Va. 423, 150 S.E.2d 104 (1966).

^[438] McCormick v. Peyton, 274 F. Supp. 797 (W.D. Va. 1967).

^[439] Va. Code § 19.2-218.

^[440] Braxton v. Peyton, 365 F.2d 563 (4th Cir. 1966); Payne v. Warden, 223 Va. 180, 285 S.E.2d 886 (1982); Webb v. Commonwealth, 204 Va. 24...