9.9 The Formal Charge

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

9.9 THE FORMAL CHARGE

9.901 In General. The "formal charge" is the written charge upon which the accused is tried. This written charge may be in the form of any of four different prosecutorial documents: the indictment, the presentment, the information, or the warrant of arrest (or summons). These four documents differ in form, but all are designed to inform the accused of the specific offense charged so that he or she can adequately prepare a defense. They are defined as follows:

1.	Indictment: a written accusation of crime, prepared by the commonwealth's attorney and returned a "true bill" upon the oath or affirmation of a legally impaneled grand jury;
2.	Presentment: a written accusation of crime prepared and returned by a grand jury from its own knowledge or observation, without any bill of indictment laid before it;
3.	Information: a written accusation of crime or a complaint for forfeiture of property or money or for imposition

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	of a penalty, prepared by a "competent public official"— normally a commonwealth's attorney—upon his or her oath of office; 465 and
4.	Arrest warrant: a written accusation of crime and an authorization to seize the accused named therein, based upon a showing of probable cause and prepared by a magistrate or judge upon his or her oath of office. 466 A summons is frequently substituted for a warrant when arrest is not necessary. 467

9.902 Felonies.

A. Accused's Right to Indictment. The Fifth Amendment to the United States Constitution requires the formal charge to be in the form of an indictment by a grand jury for all federal capital and otherwise infamous crimes. This requirement has not been made applicable to the states. ⁴⁶⁸ Virginia has no constitutional provisions concerning the formal charge, ⁴⁶⁹ and the use of the grand jury indictment is not constitutionally mandated; however, it is a statutory and procedural right. ⁴⁷⁰ Absent a written waiver, no person can be tried for a felony unless an indictment or presentment has been found by a legally impaneled grand jury. Failure of the trial court to adhere to this procedure is reversible error. ⁴⁷¹

B. Waiver. The accused can waive his or her right to an indictment. The waiver must be in writing and signed by the accused before a court of competent jurisdiction. ⁴⁷²

Certain factors should be considered in deciding whether a defendant should waive the right to indictment. Counsel should advise the accused

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not to waive indictment if there is any reasonable possibility that the grand jury, after hearing the evidence, will not indict. However, as a practical matter, grand juries in Virginia almost always return a "true bill." There probably will be less adverse publicity if the grand jury action is waived. There may be a long delay between the preliminary hearing and the grand jury proceedings. This delay may be advantageous or disadvantageous to the accused, depending on the circumstances. If the accused has been denied bail and is in confinement, he or she may wish to avoid the delay. On the other hand, delay may create a better trial atmosphere and dull the memories of adverse witnesses. The grand jury proceeding may produce such errors as improper selection of the panel, lack of qualifications of the jurors, errors in the hearing procedure, and errors in the indictment itself. However, proof of errors is difficult due to the secrecy of the grand jury proceedings, and most errors are not grounds for reversal. If there is a defect in the indictment that changes the nature or character of the offense charged, it cannot be amended except by a grand jury. ⁴⁷³ This would require a much longer delay than the amendment of an information prepared by the commonwealth's attorney. However, the possibility of an indictment containing such an error is probably slight, and the Virginia Supreme Court has been liberal in interpreting the authority of the court to amend. ⁴⁷⁴

Upon waiving his or her right to indictment, the accused can be tried either upon the warrant of arrest or upon an information prepared by the commonwealth's attorney. ⁴⁷⁵

9.903 Misdemeanors. A person accused of a misdemeanor may be tried on an indictment, information, warrant of arrest, or summons. The vast majority of misdemeanors are tried in district court, and the warrant of arrest or summons is the customary prosecutorial document used. An indictment would never be used in the district court because if the defendant were indicted, the case would be under the jurisdiction of the circuit court that appointed the grand jury. ⁴⁷⁶

Most misdemeanor cases before the circuit court are appeals de novo from district court, and the same prosecutorial document serves for both

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trials. However, there may be occasions in which the defendant is indicted for a misdemeanor, or where the felony charge in an indictment has been reduced to a misdemeanor, and these cases must be tried in circuit court. ⁴⁷⁷

9.904 Amendment to the Formal Charge.

A. In General. An amendment to the written charge must be made before the jury returns a...