What is a preliminary hearing?

A preliminary hearing is one of many hearings in the process of defending an accusation of criminal conduct. Outside of the actual trial of the case, it can also be one of the most important. For a blog on preliminary hearing strategy click here.

Virginia Code § 19.2-218 states "No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense ...." This means that in the Commonwealth of Virginia every person charged with a felony has a statutory right to a preliminary hearing.

Practically speaking, the preliminary hearing will take place in the General District Court in the jurisdiction where the accused is scheduled to be tried. The Commonwealth's Attorney will call witnesses who will testify to underlying facts and evidence. The defense attorney will have an opportunity to cross examine these witnesses, and a Judge will then decide whether there is sufficient probable cause to certify the matter to Circuit Court for trial.

It is important to understand that the standard by which a Judge reviews the evidence is one of probable cause and not reasonable doubt. Many an accused leave a preliminary hearing confused and expecting the charges to be dropped before trial because the Commonwealth's witnesses leave the stand without testifying to more than a bare minimum of facts and evidence. But, probable cause is a standard well below the high standard of reasonable doubt. In fact, depending on the charge, the facts, and the witnesses, very little evidence needs to be produced by the witnesses for the Commonwealth to reach the burden of probable cause.

Does this mean a preliminary hearing is a waste of time, or insignificant? By no means! At a preliminary hearing the defense attorney has the freedom to question every witness put on by the Commonwealth. And, any attorney worth their salt will relish at the idea of doing so., Other than the trial, the preliminary hearing is likely to be the only opportunity for the defense attorney to question a witness. It is also a good gauge of how a witness will react to difficult questions, and what evidence they actually have against an accused. If the evidence is weak, has procedural defaults, or a witness is not credible, an attorney for the accused may have the charges dismissed altogether. If the Commonwealth has "over charged" an accused, or has no factual basis for a felony charge, the Judge may also find an accused guilty of a misdemeanor rather than the felony charged.  

Finally, it is important to understand that the statutory right to a preliminary hearing only applies to felonies There is no right to a preliminary hearing in a misdemeanor case; however, the trial of the misdemeanor can fulfill all the purposes of a preliminary hearing and more. Virginia has an absolute right to appeal from the General District Court to the Circuit court in misdemeanor cases. The appeal is heard de novo, which means it is equivalent to a new trial. 

Remember, in Virginia an accused has a statutory right to a preliminary hearing. Practically speaking it takes place in the General District Court and provides a defense attorney the opportunity to cross examine the witnesses for the Commonwealth. Finally, the right to a preliminary hearing only applies when accused of a felony and not a misdemeanor. 

If you have any questions about preliminary hearings, or other criminal procedure matters, please feel free to contact the author through his website at www.waltripfirm.com. 

Child Protective Services Matters - The PPO

When CPS comes knocking on your door it can be a frightening and difficult circumstance. Imagine that someone you have never met has determined that you as a parent have neglected or abused your child? In many cases, regardless of whether facts have been proven in a court of law, a parent must be prepared to argue for their Constitutional right to keep custody of their children. Procedurally, it's important to understand the rights you have at each stage of the court proceedings. In this article we review the Preliminary Protective Order.

Preliminary Protective Order ("PPO"). Initially the County/City or Other Government Agency may move for a PPO. A PPO will change the status a parent has with their children on a temporary and immediate basis. The decisions at a PPO hearing maybe temporary, however, a failure to object to a PPO can result in the inability to have a factual hearing on the basis of the underlying claim by the County/City. What results if there is no objection is an Adjudication with a minimal showing that any form of any abuse or neglect has occurred.

Many times the County/City will proceed at a PPO with only an affidavit signed by an investigator. This should be objected to, unless a parent wishes to turn the custody of their children over to CPS.

Importantly, not every PPO requests custody be taken from parents, however, in cases where the PPO does it is important to have an Adjudicated hearing on the facts. If the child is taken into custody of CPS this can result in the actual parents of the child being required to pay support, TANF, or other social services for a child they regularly support without soils services.

If you have been contacted by CPS on charges of Neglect or Abuse, hire an attorney who can defend your right by objecting to PPO hearings when appropriate.

What is “Gross Income” for Purposes of Child Support?

        Under Virginia Code §108.2(C) gross income means “all income from all sources.” This includes, but is not limited to income from salaries, wages, commissions, royalties, bonuses, dividends ... spousal support, rental income, gifts, prizes and awards.” The Commonwealth takes a very broad approach in construing this language. Courts will include “nonmonetary as well as cash income.”

         In Howe v. Howe, the Court of Appeals included a party's contributions to their retirement plan as well as a $10,000 gift. The Court stated “the emphasis should be on including, not excluding, income especially where including the income more accurately reflects a parent's economic condition and financial circumstances.”

         The broad construction of gross income is however, not without limitations. The Court of Appeals has ruled that “[d]etermination of support awards must be based on contemporaneous circumstances.” In DeTuncq, the Court held “income includes bonuses, but should not include income 'premised upon the occurrence of an uncertain future circumstance.” This was re-affirmed in Broadhead, where the Court stated “a trial court should only include a conditional bonus within the employee's gross income when, at the time of the evidentiary hearing, the conditions are reasonably likely to be met for the bonus to vest.” The finding in Broadhead resulted in the Court of Appeals excluding a party's “predicted bonus.” Id. at 19.

         In McMartin the Court of Appeals further limited the inclusive nature of Gross Income when it found that incomes appearing as commissions, advances, and gifts should not be included where they are in fact loans. In McMartin, a wife was given financial help from her employer and friend, which included a down payment on a home, money advanced for living expenses, money paid for wife's life insurance, and $900 per month in rent the wife was not charged.

         The Court found the money given “over and above her salary ... [were] advances against her future commission.” The Court ruled “the advances and payments were in the nature of loans, rather than gifts and commissions.” Furthermore, there was no authority “that compels, as a matter of law, the inclusion of a loan in party's gross income.” And, there was “no indication that the advances will not be repaid by wife upon receipt of her commission.”

                  CONCLUSION:  

1. Courts in the Commonwealth will include any and all incomes in determining gross income. 
2. Limitations require income to be contemporaneous and not in the form of loans.

         If you have questions regarding your Child Support please contact Brandon C. Waltrip, or Heather Pedersen at Pedersen, PLLC in Williamsburg, VA. (757)903-4410.

Statutes and Case Law to Consider

Code of Virginia §108.2(C) (1950 as amended)

Turner v. Commonwealth, 226 Va. 456 (1983)

Broadhead v. Broadhead, 2010 Va. App. LEXIS 101 (unpublished)

Carmon v. Dep't of Soc. Servs., 21 Va. App. 749 (1996)

DeTuncq v. DeTuncq, 2001 Va App LEXIS 248 (unpublished)

Howe v. Howe, 30 Va. App. 207 (1999)

McMartin v. McMartin, 2006 Va. App. LEXIS 41 (unpublished)

***This Blog is NOT Intended to replace actual Legal Advice. Please See a Licensed Attorney if you have questions regarding any legal matter.