A Quick Primer on Virginia Criminal Procedure


Misdemeanors are offenses for which you can receive a sentence of up to 12 months in jail.  They are almost always brought by an arrest warrant or a summons.  The misdemeanors that we see most often are simple assaults, shoplifting, bad checks, possession of marijuana and driving crimes like DUI and driving on a revoked or suspended license.  These cases go first to the District Court — usually the General District Court, but sometimes to the Juvenile & Domestic Relations District Court if the crime involved a juvenile or family member.   If you have been given a summons for a misdemeanor, the police officer will tell you when you have to go to court.  If you have been arrested on a warrant, the magistrate will tell you when you have to go to court.  At the first appearance, the judge will advise you of your right to have a lawyer, and will appoint one for you if you are not able to afford to hire one.    You have a constitutional right to have a lawyer for any crime that has the possibility of a jail sentence, and if you cannot afford a lawyer, the judge may appoint one to represent you.   (Class 3 or Class 4 misdemeanors carry only a fine, so there is no constitutional right to have court-appointed counsel for them.)   If the judge appoints a lawyer for you, and then your family decides to hire a lawyer, you can always bring in your own lawyer.  At that first appearance, the judge will set the case for trial on a date a few weeks (or perhaps months) in advance. You will not be expected to have your witnesses for the first appearance, but you should plan on having everyone there for the trial date.

If you have been told that you have to come for your first appearance on a date that is inconvenient, you may be able to get a continuance and to reschedule things with the Court Clerk, but procedures on this differ from court to court.  In most of the District Courts in which we practice, if you have hired a lawyer, and that lawyer sends a letter to the Court with “available dates” — days that you will be able to have the trial — then you may not have to come to court for the first appearance.  Again, procedures differ from court to court.

If you have been arrested on a warrant and you go before the magistrate, the magistrate will set a bond based on two factors — whether there is a risk that you will not appear for trial, and whether you are a danger to yourself or to the community.  As a practical matter, the most important facts in determining the amount of a bond will be your prior criminal record, the nature of the offense, and the strength of your ties to the local community.  In many cases, the judge will require as a condition of your release on bond that you be supervised by a pre-trial services organization like Offender Aid and Restoration (the organization that serves courts in Charlottesville and some of the surrounding counties).  OAR may require drug testing while you are on bond, and if you test positive for drugs while you are on bond, there is a good chance that your bond will be revoked.  Keep in mind — MARIJUANA COUNTS!!  Over the years, we have had many clients on bond who test positive for marijuana while they are on bond, and they always say to us something like, “But it was just a little weed!  How was I supposed to know that a little weed would land me back in jail?”  All that we can say is this — regardless of whether you think it makes sense that marijuana is illegal, it is illegal.  If the idea of bond is that you are supposed to obey the law while you are on bond, that means that you obey all of them, including the law that makes it illegal to possess, or use, marijuana.

If you were convicted in District Court, you have the right to appeal to the Circuit Court.  You have to note your appeal within 10 days.  If you note your appeal, and then later decide not to go through with the appeal, you can withdraw the appeal.  You may have to pay more in court costs, but it won’t be a lot more.  Be aware that if you have a new trial in the Circuit Court, the judge in the Circuit Court may give you MORE jail time, or a higher fine, than what you received in District Court.


Felonies are the most serious crimes — those punishable by more than a year in prison.  They include grand larceny (stealing more than $200), breaking and entering, most drug offenses (NOT including simple possession of marijuana), serious assaults, and the really serious crimes like rape, robbery, and murder.  A felony prosecution can begin either by an arrest warrant or by the Circuit Court issuing an indictment.  If you were arrested for a felony by a police officer, you will have a bond set by the magistrate (unless the crime is so serious, or your record is so bad, that you are denied any bond).   You will have a first appearance, often the very next day.  At that first appearance, you will be advised of your right to have a lawyer.  If you cannot afford a lawyer, one will be appointed for you.  If you have a lawyer appointed, and your family decides that they want to hire a lawyer, you always have the right to bring in your own lawyer.  At that first appearance, the judge will set the case for a preliminary hearing, usually a few weeks or months away.  A preliminary hearing is NOT a trial — it is a hearing where the only question is whether there is SOME evidence to support a charge.  Generally the judge will not consider defense evidence; the question is whether, if the government’s evidence is believed, there is “probable cause” that the defendant committed the offense charged.  “Probable cause” is a much lower standard than the “beyond a reasonable doubt” standard used in a criminal trial.  Although cases often get negotiated down at this point, in the great majority of cases in which a preliminary hearing is held, the case is certified to the grand jury, which means that it is sent on the Circuit Court — the only court that can hold a full trial in a felony case.  One question that often comes up — will the judge put me in jail at the preliminary hearing?  In Virginia, the answer is simple — “No, unless you have done something to actually violate your bond conditions.”  For example, if while you have been on bond before the preliminary hearing you start contacting witnesses that you have been told not to contact, the prosecutor can ask that your bond be revoked.  But if you haven’t done anything to screw up, the judge cannot revoke your bond.  Note that this is different from the procedure in other states.

The grand jury of the Circuit Court meets every month or two (it depends on the schedule in that court).  The grand jury meets on “term day,” which is the first day of the month-long or two-month-long term of court.  At that time, the case is presented to the grand jury — a group of 5 to 8 citizens chosen by the Clerk and the Judge.  In such a case, the police officer or lead investigator will typically just tell the grand jury what the Commonwealth’s evidence is.  The grand jury will almost never hear from actual witnesses, and typically will not hear any of the defense side of things.  Not surprisingly, in virtually all cases certified to the grand jury, the grand jury issues an indictment.  And because virtually all cases result in indictments,you and your lawyer will almost surely need to be in Circuit Court on term day when the next date will be picked.

In many of the courts in which we regularly practice, the next date will be an arraignment.  An arraignment is just a 5 to 10 minute hearing where the judge finds out whether you intend to plead guilty or not guilty and whether you want a jury or a judge trial; then the judge will set the trial date.  In some of the courts in which we regularly practice, the date set at term day will be the actual trial date.

You have a right under both the Virginia and the United States Constitutions to choose to have a jury trial on a plea of “not guilty.”  If you want to have a trial by only a judge without a jury, both the prosecution and the judge have to agree to waive a jury.  In other words, unless EVERYONE agrees to a judge trial, you will have a jury trial.

If you have a jury trial and you are found guilty, the jury will recommend a sentence (unless you are a juvenile).

If you were found guilty at your trial, you will usually have a pre-sentence report prepared, and you will have a sentencing hearing two or three months after the trial.