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.

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.

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.

Child Custody Determinations

In the Commonwealth of Virginia the local Juvenile and Domestic Relations Court handles determinations of child custody and visitation. Based on statute, the court considers the "best interest of the child" when deciding matters of custody and visitation. The best interest factors are outlined in Virginia Code Section 20-124.3. These include such factors as the age, mental and physical health of the child, income and well-being of the parents, the siblings present in the custodial parents home, and other factors.

It is important to understand that many judges place varying weight on individual factors. Additionally, a guardian ad litem, may find one factor more important than another. A good attorney will know what factors both the judge and guardian ad litem find most important, and if possible, argue those factors in the best light possible to the judge.

A parent or guardian should also be prepared to comply with conditions that the court puts in place. This may require a review date within six months of the initial custody and visitation determination. Importantly, denying visitation to a non-custodial parent during a review period can result in negative outcomes at a review hearing.

If you have questions regarding child custody and visitations make sure to hire an attorney who will argue the best interest factors in the best light possible considering what factors a judge considers most important.

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.

Chapter 7 Bankruptcy - What a spouse should know.

Many couples come in to my office to discuss a Chapter 7 Bankruptcy and many times due to employment cut backs, pre-marriage spending, or just bad luck, only one of the parties is in a position where they need to file bankruptcy.

The first question I am always asked, by the non-filing spouse, is whether the bankruptcy will effect their credit. The answer is yes and no. A non-filing spouses credit will not be directly effected. No black marks will show up on the non-filing spouses credit report. However, if both the non-filing and filing spouse apply for a joint car loan, mortgage or otherwise, the bankruptcy can effect the interest rate or borrowing limits that a lender will offer. This is an indirect effect on the non-filing spouses credit.

The next most common question will be what if any information as to the non-filing spouse's income or credit will be required for the filing. The Bankruptcy provisions require information as to the income of both spouses if the non-filing and filing spouse are under the same household. This can effect whether a filing spouse qualifies for a chapter 7. However, the bankruptcy provisions also take into consideration the expenses of the non-filing spouse. This can be a benefit in passing the "means test" in a chapter 7 bankruptcy.

To ensure both spouses are protected in a bankruptcy, regardless of whether one spouse or both file, make sure your attorney is aware up front about the income and credit of both the non-fing and filing spouse. Please call Brandon C. Waltrip if you are considering filing bankruptcy.

What in the world is an Uncontested Divorce?

Almost every divorce client walks in to an attorney's office and the first thing they ask about is the Uncontested Divorce. And, its to be expected. Most law firms charge a flat rate for Uncontested Divorces, and the fee is usually less than what most people expect to pay for a Divorce. The truth is, there is no Uncontested Divorce.

   What an attorney means when they advertise an Uncontested Divorce, is that if both parties are willing to enter into what is commonly referred to as a Property Settlement, or Stipulation Agreement, the attorney will draft an Agreement and the other necessary filings for a flat rate. But, most people in a Divorce are not in agreement about the matters in a Property Settlement Agreement.

    A Property Settlement Agreement covers every aspects of the parties marriage from their home, vehicles, credit card debt, spousal support, child support, healthcare for children, etc. These are issues which most people may have an idea about but are not 100% sure on which side they fall. Of course, if an attorney says a party is entitled to spousal support, they are almost always willing to fight out a Contested Divorce to obtain this support. If not, then they will almost always compromise on the issue - even paying spousal support in some cases to leave the marriage in good will.

    There are also a few pitfalls to an Uncontested Divorce that every client should be aware of. For example, does the flat fee cover court costs, depositions, service of process and what about postage? Many law firms have hidden fees with an Uncontested Divorce. Some firms charge between $75 and $100 per page for changes to the Agreement. Some of these changes maybe as simple as changing whether the Husband or Wife will cover the children's health insurance. This will take an attorney only moments to alter and a bill goes out for a $100.

    What should a client do then? The best advice for someone hoping to keep their Divorce cost low and follow down the path of an Uncontested Divorce is to sit down with your spouse and write out the property that each of you intend to keep, any child custody arrangements, or even who will be responsible for what portion of the family debt. Something as simple as writing out who gets what can save hundreds of dollars in attorneys fees.
          If you are considering an Uncontested Divorce - give me a call or email and I can help you work through these matters in a cost effective and efficient way.

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 ..."

Stern v. Marshall, What's the Deal with More Work?

        People don't like change. People also don't like change that brings more work. When an idea comports with the belief, philosophy, or ideology we've developed, if it involves more work, most people want none of it. That is what has resulted in the Supreme Court's recent decision of Stern v. Marshall. 
        In this opinion published June 23, 2011 the Supreme Court dropped what some call a "bombshell" on the world of Bankruptcy. The case involved the estates of Vickie Lynn Marshall, better known as Anna Nicole Smith, and Pierce Marshall, son to the Oil Tycoon J. Howard Marshall who Vickie was married to for 14 months. The Court found bankruptcy courts "lacked constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor's proof of claim."
        What that ultimately means is in each filing of bankruptcy the court will have to determine (1) whether the bankruptcy court has statutory authority, and (2) whether the bankruptcy court has constitutional authority. This problem results in more work for the judiciary. But, it also means an avenue of appeal for debtors and creditors in the joust of bankruptcy.
        In the facts of Stern, Pierce Marshall filed a proof of claim asserting rights to recover damages from Vickie's (Anna Nicole) bankruptcy estate alleging Vickie had defamed him. Vickie responded with a counterclaim for tortious interference under Title 28 USC 157(b)(2)(C). After losing in Bankruptcy court Pierce objected that the court lacked jurisdiction as the counterclaim was not a "core proceeding." The Supreme Court followed the ruling of the Court of Appeals who had reversed the decisions of the Bankruptcy and the District Court.
        The most important facet of all this, in my opinion, is that debtors and creditors alike can appeal the decisions of the Bankruptcy court for a lack of constitutional jurisdiction. In the short run this a load of work for District Courts. A decision disliked in Bankruptcy will be appealed to the District Courts for a lack of constitutional jurisdiction. The District Courts across the country will hammer out modes of analysis and throw as much back to the bankruptcy court as possible. After a few years a case will come on appeal and if judges, clerks, and courts are lucky the Supreme Court will outline the proper constitutional analysis for a bankruptcy court.
        So, for practioners on the other-side of the bench, does it mean more work? Yes. For judges, clerks, and courts, does it mean more work? Yes. The question then becomes how do you feel about it?

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.