Petrovich & Walsh:
Summary of Criminal Law
There are two different classifications of crimes, misdemeanors and
felonies. A misdemeanor is any offense that is punishable by up
to a year in jail, a fine, or both. Examples of misdemeanors
include driving offenses such as reckless driving, driving under the
influence, and driving on a suspended license. Misdemeanors also
include such offenses as possession of marijuana, shoplifting, and
assault and battery.
A
felony is any offense that is punishable by more than one year in
prison, a fine, or both. Examples of felonies include murder,
rape, and malicious wounding. Felonies also include such offenses
as possession of cocaine, grand larceny, and robbery.
Summary of Court Procedure
A criminal case typically begins with a complaint to the police.
The police respond, investigate, and file an affidavit with a
magistrate. The magistrate then issues a warrant, and the Court
procedure begins. After the defendant is arrested, a magistrate
will typically set a bond such as personal recognizance, a cash bond,
or a surety bond. The defendant will then be required to attend an
arraignment. At the arraignment, the defendant is informed about
the charge, provided with the next court date, and asked questions
about hiring an attorney, or if they cannot afford an attorney, asked
to complete a questionnaire for a court-appointed attorney or public
defender.
If the defendant
is charged with a misdemeanor, the next court date will be the trial on
the misdemeanor charge. At the misdemeanor trial witnesses will
testify, evidence will be presented, and the judge will make a decision
on guilt or innocence. If the defendant is found guilty the
sentence will be imposed.
If the
defendant is charged with a felony, the next court appearance will
usually be a preliminary hearing. At the preliminary hearing
witnesses will testify, evidence will be presented, and the judge will
determine if there is probable cause that the defendant committed a
felony. If the judge finds probable cause, the judge will certify
the case to the grand jury. After the grand jury returns an
indictment, a trial by a judge or a jury will take place. A
felony case may require a number of pre-and post-trial hearings on
issues such as the suppression of evidence or statements, the use of
evidence at trial, and the sentencing of the defendant.
Summary of Evidence
In general, the common law and statutes of the state where a crime
takes place define what the prosecutor must prove beyond a reasonable
doubt to convict a person of a crime. The common law and statutes
of each state may be different, and thus federal offenses may be
different from an offense in Virginia or the District of Columbia.
The ways in which a prosecutor proves a case are controlled by the
rules of evidence. The rules of evidence may vary from one
jurisdiction to another, but essentially they all require that the
evidence be reliable, accurate, and that the evidence be obtained
without a violation of constitutional rights. Evidence is
comprised of any tangible things (including documents) or testimony
that may help elucidate what happened before, during, and after the
crime. Examples include, witnesses testifying about what they
saw; police officers testifying about was said to them; documents
explaining the results of scientific tests; videotapes showing some
action; pictures of a victim; and a weapon or object.
Other Considerations
In Virginia, the criminal process is unique and favors the
prosecution. For instance, criminal defendants in Virginia
are not entitled to see police reports. In addition, discovery
(that is, the pre-trial disclosure) of evidence, witnesses, and
information that the prosecution plans to use against a defendant is
extremely limited. Virginia is also one of a small minority of
states in which the jury decides what sentence to impose if the
defendant is convicted.
Criminal
charges and/or convictions have consequences that go beyond the
immediate concerns of incarceration and fines. Possession of
controlled substances and D.U.I., for example, require a one-year
suspension of a driver's license if convicted. A person convicted
of a felony does not have the right to possess a firearm, does not have
a right to vote nor even serve on a jury. An alien convicted of a
felony or crime of moral turpitude (lying, cheating, or stealing)
usually is no longer able to immigrate or stay in the United
States. A juvenile conviction for a felony can be used against
that person for sentencing purposes if the person is charged with a
crime as an adult. An adult unjustly charged with a crime that is
later dismissed will have an arrest record that is available for
inspection by potential employers unless it is expunged at a later
court proceeding.
Retaining Counsel for Representation
In light of the above, if an individual is charged or
about to be charged with an offense that carries the possibility of
incarceration or loss of driver's license, it is imperative that the
services of a lawyer be retained. A person receiving a subpoena
to appear before a grand jury or as a witness in a criminal matter is
also advised to contemplate hiring an attorney; prosecutors' targets
can change quickly if questionable conduct comes to light during
questioning.
Selecting and hiring an attorney should be done without delay. As
time passes between the actual crime and a court date, witnesses become
more reluctant to speak with defense counsel, evidence changes form or
is lost, and police and prosecutors build a stronger case against a
defendant. Moreover, an attorney can advise you on whether you
should speak to the police, and be present with you when any
questioning takes place to ensure that your constitutional rights are
protected. (As a general rule, if you are a suspect or closely
connected with a crime, you should not speak with the police until you
have spoken with counsel; many defendants believe they can explain what
happened and avoid charges, only later to hear their own words used
against them.)