9.9 Pretrial Motions

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

9.9 PRETRIAL MOTIONS

9.901 In General. Rule 3A:9(a) of the Rules of the Supreme Court of Virginia abolishes archaic procedural forms of raising defenses and objections before trial and substitutes for them the motion to dismiss and the motion for appropriate relief. In addition, the rule eliminates the needless

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and confusing distinctions among the plea in abatement, plea in bar, demurrer, and motion to quash, so that the practitioner easily can determine which of these defenses and objections should be invoked and at what time in the proceedings. Although the Virginia Code retains such terms as "pleas in bar" and "pleas in abatement," ⁴⁴² the rule specifically states: "Defenses and objections made before trial that heretofore could have been made by other pleas or by demurrers and motions to quash shall be made only by motion to dismiss or to grant appropriate relief, as provided in these Rules." ⁴⁴³

9.902 Categories of Defenses and Objections.

A. In General. Rule 3A:9(b) recognizes two classes of defenses and objections: those that must be raised before trial and those that may be raised at that time. Failure to timely raise those that must be raised before trial constitutes a waiver unless good cause is shown. Issues that may be raised before trial may also be raised at any time before a determination of guilt.

B. Matters That Must Be Raised Before Trial. Rule 3A:9(b)(1) provides:

Defenses and objections based on defects in the institution of the prosecution or in the written charge upon which the accused is to be tried, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion made within the time prescribed by paragraph (c) of this Rule. The motion shall include all such defenses and objections then available to the accused. Failure to present any such defense or objection as herein provided shall constitute a waiver thereof. Lack of jurisdiction or the failure of the written charge upon which the accused is to be tried to state an offense shall be noticed by the court at any time during the pendency of the proceeding.

Subparagraph (b)(1) is concerned with those defenses and objections that, if not raised before trial, are waived. ⁴⁴⁴ These defenses and objections include the so-called "dilatory" pleas concerned with errors or irregularities

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for which the defendant is entitled to appropriate relief, such as an objection to the wording of the written charge, errors in the selection or proceedings of the grand jury, and an objection that the accused was entitled to, but did not receive, a preliminary hearing. These matters are capable of determination without the trial of the general issue and ought to be disposed of before the beginning of the trial. If the accused does not raise those defenses or objections before trial, his or her failure to do so constitutes a waiver unless good cause is shown. ⁴⁴⁵ Although an objection that the written charge upon which the accused is to be tried fails to show jurisdiction or to charge an offense seems to fall into the category of objections included in subparagraph (b)(1), such defect renders a conviction void and, therefore, can be raised by the defendant at any time. ⁴⁴⁶

Section 19.2-266.2 of the Virginia Code requires that a defendant's motion or objection seeking to suppress evidence based on specified federal or state constitutional grounds be raised in writing no later than seven days before trial, although for good cause shown and in the interest of justice, the trial court may allow an objection or motion to be made at a later time. ⁴⁴⁷ If a defendant does not exercise due diligence to discover relevant facts before trial and has not been misled by the Commonwealth or its witnesses or otherwise been prevented by the Commonwealth from discovering relevant facts, ignorance of a witness's testimony, especially one who could be expected to testify, does not constitute good cause for failure to comply with the stat-ute. ⁴⁴⁸

C. Matters That May Be Raised Before Trial. Rule 3A:9(b)(2) provides:

In addition to the defenses and objections specified in subparagraph (b)(1) of this Rule, any defense or objection that is capable of determination without the trial of the general issue may be raised by motion before trial. Failure to present any such defense or objection before the jury returns a verdict or the court finds the defendant guilty shall constitute a waiver thereof.

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Subparagraph (b)(2) is concerned with those defenses and objections that the accused may raise by motion, either before or during trial, such as the suppression of illegally obtained evidence, improper venue, former jeopardy, pardon, statute of limitations, and immunity from prosecution. ⁴⁴⁹ Obviously, if the defense or objection cannot be determined without the trial of the general issue, it cannot be determined before trial, and Rule 3A:9(b)(2) so indicates. For example, a motion to dismiss because of former jeopardy could not be determined without trial of the general issue if the prosecution contended that the offense charged in the indictment was different from the offense for which the accused previously had been put in jeopardy. On the other hand, if the only issue were whether or not the accused previously had been in jeopardy, that issue could be decided without the trial of the general issue and therefore may be raised before trial.

A claim of lack of territorial jurisdiction (Commonwealth's failure to prove that the offense occurred within the territorial jurisdiction of the court), like a claim of lack of venue, is different from a claim of lack of subject matter jurisdiction and is waived if not timely raised. ⁴⁵⁰

9.903 Procedure.

A. Form and Timing. Any motion made before trial in a court of record must be in writing unless the court, in the exercise of sound discretion, permits an oral motion. ⁴⁵¹ Motions that must be made before trial or are thereby waived must be filed or made before a plea is entered and, in a court of record, at least seven days before the day fixed for trial. ⁴⁵² The defense should give the Commonwealth notice of the filing of the motion and also of the hearing date. ⁴⁵³

B. Hearing. Generally, a hearing is conducted by the court to decide both the facts and the law at issue in the motion. ⁴⁵⁴ The burden of going forward with the evidence generally rests initially with the defense. The

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Commonwealth bears the initial burden in "confession" cases to show compliance with Miranda, and in other cases where waiver of rights is at issue, the burden is on the Commonwealth. ⁴⁵⁵ The rules of evidence to be applied to these hearings are presently unclear. Statements by the accused in support of the motion to suppress evidence may not be admitted on the issue of guilt or innocence at the trial. ⁴⁵⁶ If a motion is determined adversely to the accused, the plea must stand or he or she may plead over, or if the accused has not previously pled, he or she must be permitted to plead. The motion need not be renewed if the accused properly saves the point for appeal when the court first determines the motion. ⁴⁵⁷

9.904 Affidavits and Certificates of Analysis. In response to Melendez-Diaz v. Massachusetts, ⁴⁵⁸ the Virginia General Assembly amended sections 18.2-472.1 and 19.2-187.1 of the Virginia Code to create "notice and demand" statutes. Under sections 18.2-472.1 and 19.2-187.1, the Commonwealth, if it intends to introduce an affidavit signed by a custodian of the records that a sexual offender failed to comply with the duty to register or reregister pursuant to section 9.1-907, or introduce a certificate of scientific analysis into evidence in lieu of testimony at the preliminary hearing or trial, must file notice with the clerk of court and simultaneously provide notice to the defendant at least 28 days before that hearing or trial. If the defendant objects to the certificate being introduced, the defendant must file a written objection within 14 days of the date on which the notice was filed with the court with the clerk and provide a copy to the commonwealth's attorney. ⁴⁵⁹ These notice and demand statutes only apply to the individual who prepared the affidavit or certificate of analysis. They do not apply to any individuals who may have been involved in the record-keeping or analysis process. ⁴⁶⁰ However, those individuals may be subpoenaed by the defense at a cost to the Commonwealth and called by the defense as adverse witnesses. ⁴⁶¹

Any objections regarding the timeliness of the Commonwealth's notice must be raised before the trial or hearing unless no notice was provided. Both parties may receive continuances to comply with these statutory provisions,

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and the Commonwealth, if it has used due diligence to secure the presence of the party that prepared the certificate or affidavit, may obtain a continuance up to 90 days in cases involving an incarcerated defendant or 180 days in cases involving a non-incarcerated defendant to secure the presence of that witness. ⁴⁶²

It is usually not advisable to assert notice and demand rights at the preliminary hearing since the commonwealth's attorney may either provide a bare bones hearing allowing the case to be dismissed or a nolle prosequi charge and then seek a direct indictment. ⁴⁶³ Under those circumstances, the defendant would lose the benefit of obtaining limited discovery of the witness's testimony, which a preliminary hearing provides.

9.905 Jurisdiction and Venue. The "jurisdiction" of a criminal case requires (i) that the offense was committed (at least in part) in Virginia; (ii) that the case was filed in a court...