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 Matters - The Adjudicated Hearing

This blog will be discussing the adjudicated hearing and entry of a possible Child Protective Order ("CPO"). The adjudicated hearing is the second hearing in a complaint by Child Protective Services against a parent/guardian for abuse or neglect. 

At an adjudicated hearing, if the PPO was objected to, a full trial on the facts will take place. A Judge will then decide whether by a preponderance of the evidence if abuse/neglect has occurred. It is important at this stage that a party be prepared to meet the evidence presented by CPS.

At most hearings the Court will take the  testimony of the CPS investigator, and any pertinent witnesses. This may also include forensic evidence such as videos, photographs, or medical reports.

To properly meet this evidence a party should have experience in CPS investigative methods; especially the interview of a possible child victim. A party must also be prepared to dispute the forensic evidence.

It is also important for a party to have a court reporter present at the hearing. If a party intends to appeal the finding, an appeal to a local circuit court is permissible and the transcript from the hearing can be used to impeach any witnesses. 

If a court determines the evidence is sufficient to enter the CPO there will then be a dispositional hearing. CPS will continue to monitor both the parents and children. For all intensive purposes the Adjudicated hearing is the most important stage of a CPS Protective Order. As a parent/guardian make sure you have an attorney who can handle the evidence and testimony presented by CPS.

Waltrip Appointed to Defend Accused Child Rapist

Attorney Brandon C. Waltrip has been appointed to represent a local man on charges of rape of a child under thirteen years of age; indecent liberties with a child; and assault and battery of an infant. Mr. Waltrip was appointed to represent the defendant on December 21, 2012. The defendant was denied bond by the Court, which was appealed to the Wililamsburg James-City County Circuit Court. At the bond appeal, Mr. Waltrip argued that the defendant would plead not guilty to the charges.
    Circuit Court Judge McGinty denied bond and the matter was remanded to the Williamsburg Juvenile and Domestic Relations Court for pre-liminary hearing. The pre-liminary hearing is scheduled for January 25, 2013 at 10:00 AM.

What is an Arraignment and whose this attorney?

One of the first steps in a criminal prosecution is the arraignment. This is when the accused is brought before a judge or magistrate to determine whether he or she wishes to hire an attorney, have the court appoint an attorney, or waive the right to an attorney.

Many defendants choose to hire their own attorney, however, due to a lack of finances many cannot afford an attorney. The Supreme Court of Virginia allocates funds that provide indigent defendants with an attorney paid for by the State. At the arraignment, if an accused requests a court appointed attorney, the Judge will usually ask a series of questions to determine the average income of the accused. The Judge will then determine, based on statutory provisions, whether hiring an attorney would create an undue hardship for the accused. If a hardship would occur or already exists the court will appoint an attorney. The procedures are outlined in detail here -  http://www.courts.state.va.us/courtadmin/aoc/djs/resources/manuals/ctapptatty/toc.pdf

Court appointed attorneys will vary depending on jurisdiction. Jurisdictions such as Richmond, Norfolk, or Fairfax have Public Defender who work full time for the Commonwealth representing indigent defendants. There is a Public Defender's Office with a full staff of employees. Smaller jurisdictions, such as James City County, Gloucester, or York County, rely on criminal defense attorneys in the area to accept court appointed cases. An attorney is usually given one week out of the year where they must appear for arraignments and should an accused require a court appointed attorney they are there to meet the accused and discuss their case with them. At times, due to scheduling of arraignments, the "duty attorney" (as the court appointed attorney is sometimes called), will not be present and the Judge will appoint the attorney and provide his or her information to the accused to get in touch with on their own.

Other than deciding whether to hire an attorney, request a court appointed attorney, or waive one's right to an attorney, there are also two important things any accused should keep in mind. 

  1. If you are not sure what you want to do, ask for a continuance. If you are the accused and you wish to hire an attorney, but don't currently have the funds, request a continuance to hire an attorney. Most judges grant two to three weeks for an accused to hire an attorney and notify the court. They will set a date for you to appear again, but this will give you time to find the right attorney. If this is your position, make use if it.

   2. The second important thing to remember is this is not the time to argue your case! Many defendants show up for arraignment and begin revealing details to Judge about what happened. This should never happen. 99% of the time, this same Judge will hear the case later on and decide whether an accused is guilty or innocent. A wise defendant will make no statements about their case to the Judge at arraignment.

Arraignments are an important part of the criminal justice system. Make use of them to hire an attorney, or to have one appointed by the court. Finally, do not discuss or reveal any facts about your case to the Judge or court. If you have questions about an up-coming arraignment, please feel free to contact Brandon C. Waltrip, Esq. by email at Brandon@hlpedersenlaw.com, or by calling 757-903-4410.

3 Tips for a Driving on Suspended Charge

Have you been charged recently with a driving on suspended license? Here are a few quick tips to help yourself, and help your attorney, get your charged reduced or dismissed altogether.

1. PAY OFF COURT FINES. Many driving on suspended charges are a result of past un-paid court cost or fine. Any defendant should get these paid in full prior to their court date. Many times this can result in a reduction in charge with a very low fine. 

2. GET YOUR LICENSE RE-INSTATED. If you have paid up any court costs that were previously owed, you should be able to get your license re-instated through the DMV. There is typically a $150 re-instatement fee that should be paid to the DMV. This again can help in having a charged reduced if not dismissed.

3. CORRECT ANY ISSUE THAT RESULTED IN A STOP. Drivers on the highways of the Commonwealth are pulled over all the time for remedial defects in their vehicles or registration; including a lapse in insurance coverage! These should be corrected prior to the trial date and can aid in having a charged reduced or dismissed.

Following these three quick tips can help your attorney navigate a charge of Driving on Suspended. Although not considered by many to be a very serious charge, these simple tips are important because multiple convictions for driving on suspended carries mandatory jail time. Again, doing these three things do not guarantee a reduction in charges or a dismissal but certainly will not hurt your case. If you have any questions about a driving on suspended charge, or any other traffic matter, please call and I can personally answer any questions you might have.

Self-Defense Law; A "Beast of Burden"

    The Rolling Stones song "Beast of Burden" has nothing at all to do with the self-defense law. But, when I hear about a self-defense case, such as the recent Trayvon Martin incident in Florida, I can't help but think of the song. "You can put me out, on the street!" rings in my head.   
    "Beast of Burden" is a song about love, not law, however, the law on self-defense actually requires an accused defendant, and his or her attorney, to be in effect a "Beast of Burden."  This is because an accused defendant bears the burden of proving they acted in self defense.
    Based on long-standing common law self-defense is an affirmative defense. The defendant, in effect, admits to doing the acts charged, but offers other evidence of justification or excuse. To succeed the defendant's evidence must be enough to raise a reasonable doubt in the minds of the triers of fact; i.e., the judge or jury. This seems contradictory as in nearly every other criminal prosecution the only burden is on the prosecutor to prove, beyond a reasonable doubt, that an accused has committed a crime.
    Also important to the case is to understand that the defendant's presentation of evidence of self-defense does not negate any element of a crime. This means in a case where a defendant has been charged with murder the Commonwealth bears the burden of proving the killing of a human being with malice aforethought. When each of these elements are proven, a defendant can be found NOT GUILTY of the crime where the trier of fact finds sufficient evidence for self-defense, but each element of the crime still stands as proven.
    The case law in regards to showing self-defense is fact specific. Where there is an assault with a knife, as opposed to a pistol, the necessity of self-defense changes drastically. The two important things to remember in any self-defense case is this:

1. The Commonwealth must prove every element beyond a reasonable doubt; and
2. The Defendant bears the burden of showing self-defense. 

    A good discussion of self-defense law in Virginia can be found in McGhee v. Commonwealth; 219 Va. 560 (1978), Wynn v. Commonwealth; 5 Va. App. 283 (1987); and Commonwealth v. Cary; 271 Va. 87 (2006).
    So, that all being said, when I hear of an incident of accused murder and a possible self-defense case this is why I think of the Rolling Stones. ... "Am I hard enough, Am I tough enough, Am I rich enough, I'm not too blind to see ..."

Virginia DUI Laws: "Driving or Operating"

        The Virginia laws on Driving Under the Influence are fairly set in stone. The Legislature in Richmond, however, continues to change the laws in respects to punishment. Each year they try to raise the mandatory minimum as to Fines, Incarceration Periods, and Periods for a Loss of License. But, that doesn't change the case law. Here is an overview of different Virginia Cases involving "Driving or Operating" decided over the years.

1. To operate a vehicle is to "drive or be in actual physical control of a motor vehicle." Nicolls v. Commonwealth, 212 VA. 257
2. The ability to move a vehicle from place to place, in a functional sense, is not required in order to "operate." Keesee v. Commonwealth, 32 VA. App. 263
3. There is no bright line rule for "operating" or "driving," the motor need not be running or its ignition switch be in the "on" position for a conviction of DUI. Propst v. Comm., 24 Va App. 791
4. Violation may occur in a parking lot; driving or operating must not occur on a public highway. Gray v. Comm., 23 VA. App. 351
5. Defendant did not drive or operate car since key ignition did not engage car .... because the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of the carthe defendant did not "drive or operate" the car within the meaning of the statute. Stevenson v. City of Falls Church, 243 VA. 434.

        Propst and Stevenson seem to contradict one another as to ignition systems. Propst is the more recent Virginia Supreme Court case and is likely controlling. An interesting point to consider though is regarding keys and ignitions in the new keyless start vehicles. Hypothetically, if a driver is seated in a car with a keyless ignition, or a push-button ignition system, the vehicle can be started at anytime by simply pushing a button. Would Courts consider this in the "on" position? Is the vehicle even "operable" prior to ignition? There is no "ignition switch" to put a key in and turn to the "on" position?