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It is your constitutional right to remain silent. You might be familiar with the phrase "anything you say can and will be used against you." It is the absolute truth! This warning comes from a famous Supreme Court case called United States v. Miranda. This is one of several warnings called "Miranda warnings."
The police use many tactics to get people to talk. Sometimes they threaten that they will charge the person with many more crimes or more serious crimes if they do not talk. Sometimes the police will give the impression that if the person explains himself then maybe he will not be charged with a crime. The police will act friendly and sometimes even joke around with the person. If this happens to you, do not talk to them. You have too much at stake to make any statements at all. Your only response should be to politely, but firmly, state, "I want an attorney."
Remember, anything you say, from idle chit-chat to a formal statement, can and will be used against you by the police, prosecutors, juries, and judges. You have the right to be silent so USE IT!
If you have been arrested, it is critical that you contact an attorney immediately. Having a lawyer involved as early as possible in the case protects you from making statements to police or witnesses that could later be used against you. Also, your attorney can begin investigating the case while witnesses' memories are fresh and evidence is more easily obtained.
If you have not been arrested but you think that the police might be investigating you about involvement in a crime, now is the time to contact an attorney. A lawyer can contact the officer or detective and the witnesses in the case and work to try to prevent charges from ever being filed. You cannot do this alone without risking that your statements will be used later against you.
If you have been told by a law enforcement officer that he has a warrant against you and you must turn yourself in, you should contact an attorney who can assist you in that process, speak to the magistrate about releasing you on favorable terms (such as personal recognizance or a low bond), and prevent the police from obtaining statements from you.
Once arrested, the defendant is booked. This is the process of taking fingerprints, a photo (or mug-shot), and other formalities associated with booking. A detective or police officer may ask the defendant to make a statement which should be declined. The defendant will be brought before a magistrate judge who will decide the initial bond amount, if any. A bond is an amount of money that, if required, must be paid in order for the defendant to be released. The purpose of a bond is to ensure that the defendant appears for all future court dates. The amount of the bond is required by the Constitution to be commensurate with the crime. In other words, a minor misdemeanor such as petit larceny should result in a small bond while a serious crime such as malicious wounding will result in a much higher amount. Other factors are also considered such as whether the court has reason to believe the defendant will flee or whether the defendant poses a danger to the community.
Once an arrest warrant is served, the defendant will be arraigned. An arraignment is a court hearing in which the defendant is read the charges and asked whether he would like an attorney. A defendant should always ask for an attorney. The court will set the next court date.
Discovery is information in the possession of law enforcement or the prosecuting attorney about the facts of the case and which must be revealed to the defendant and his attorney. Examples of discovery are any statements that the defendant made to law enforcement or the criminal record, if any, of the accused. In Virginia, discovery is very limited. Many defendants are shocked to learn that the prosecutor does not have to hand over very much information. Some jurisdictions are better about the amount of discovery that they provide and some are worse. An experienced attorney knows what to expect and demand from each jurisdiction.
In every jurisdiction, the prosecuting attorney is required to provide all "exculpatory" evidence. Exculpatory evidence means evidence that tends to prove that the defendant did not commit the crime or any evidence that witnesses have changed their story. An example of exculpatory evidence is if the prosecuting attorney has a videotape that contradicts a witness statement. If such a videotape exists then the prosecutor is required to turn that over to the defense. This is to help ensure justice.
In Virginia, all misdemeanors alleged to be committed by an adult and that do not involve any juveniles or certain family members as alleged victims are initially heard and tried in the General District Court ("GDC"). Examples of misdemeanors that may be heard in GDC are trespass, disorderly conduct, assault and battery, indecent exposure, petit larceny, possession of marijuana, driving while intoxicated, and driving on a suspended license. In this court, the defendant cannot have a jury trial but can have a trial before a judge. If a defendant wishes to have a jury trial, he must first try the case in GDC and then appeal to the Circuit Court where he may ask for a jury trial.
Most felonies alleged to have been committed by an adult and that do not involve any juveniles or certain family members as alleged victims begin in GDC. Examples of felonies that may be heard in GDC are grand larceny, drug possession, malicious wounding, burglary, rape, robbery, and murder. A felony in GDC is set for a preliminary hearing. The preliminary hearing is a probable cause hearing. At the hearing, a judge will listen to evidence and determine if there is a reasonable basis to believe that the charged crime was committed by the defendant. If probable cause is found, the case is certified to be heard by a grand jury that will usually issue an indictment. An indictment simply means that the charge is continued in the Circuit Court. By law, neither the defendant nor his attorney are allowed to be at the grand jury hearing. If probable cause is not found, the case is dismissed but may still be recharged by the prosecuting attorney. In the Circuit Court, the case may be heard before a jury or a judge. Both the defendant and the Commonwealth have a right to a jury in Virginia.
All misdemeanors and felonies alleged to be committed by juveniles (anyone under age 18) begin in the Juvenile and Domestic Relations District Court ("JDR"). There is no right to have a jury trial for these charges unless and until they are heard in the Circuit Court.
Misdemeanors allegedly committed by adults against juveniles or by one family member against another will also be heard in JDR. Examples of these types of misdemeanors are domestic assault and battery and contributing to the delinquency of a minor. Just like in GDC, there is no right to a jury trial but a defendant may have his case tried before a judge. If the defendant wishes to have a jury trial, he must first try the case in JDR and then appeal to the Circuit Court where he may ask for a jury trial.
Felonies allegedly committed by adults against juveniles or by one family member against another will have their preliminary hearing in JDR. Examples of these types of felonies are statutory rape, indecent liberties with a child, domestic assault and battery third or subsequent, and marital rape. Just like in GDC, if probable cause is found then the case gets certified to the grand jury and is heard in the Circuit Court before a judge or a jury.
At trial (judge or jury), the Commonwealth must prove that the defendant is guilty beyond a reasonable doubt. This means that it is not enough to convict if the judge or jury merely suspects or believes that the defendant is guilty. Probably guilty is also not enough. The judge or jury must believe that the defendant is guilty "to a moral certainty" which is a very high standard.
During the trial, the defense attorney is entitled to cross-examine the Commonwealth's witnesses and usually does so. However, it is important to know that, in our system, the defendant is not required to do anything at all. The defendant does not have to prove that he is not guilty. The entire burden of proof is on the Commonwealth.
At the conclusion of the trial, the judge or jury renders a verdict. If the verdict is not guilty, the case is over and the same accusations may never be charged again. If the verdict is guilty, the defendant has a sentencing hearing.
In Virginia, at the conclusion of a jury trial, in all cases except juvenile cases, the jury recommends a sentence to the judge. This is an unusual practice across the country. Even after the jury makes its' recommendation, the defendant is still given an opportunity to have another sentencing hearing before the judge. However, the judge will often impose the jury's recommendation.
Generally, in a Circuit Court case, the final sentencing hearing before the judge is set four to eight weeks after a verdict of guilty.
After a Circuit Court trial, a defendant has a right to appeal the verdict and/or sentence to the Virginia Court of Appeals if there are legal errors that can be raised and considered. Even if a defendant appeals, he may still be required to begin serving his sentence pending his appeal or he may be required to pay a bond pending resolution of his appeal.
Habeas Corpus is another type of appeal. It literally means "you have the body" and is a lawsuit usually filed against the prison warden of the prison where the defendant is serving his time. It is a civil action against the government (who is "holding the body"). A habeas corpus appeal is made by a person serving time to overturn a verdict or seek a particular type of relief.
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