Defending Misdemeanors in Virginia: A Primer on Misdemeanor Criminal Procedure

A person can be charged with a Misdemeanor in two ways: though a Summons or a Warrant. A Summons (often called a “ticket”) is the accusation of a crime or traffic offense without a full- blown arrest. The person summoned is ordered to come to Court on an assigned date to answer the charge. A Warrant is usually the product of a full-blown arrest (which means seizure, handcuffs, fingerprints, and a photograph) and is issued by a Magistrate. A Magistrate is a judicial officer, independent of the police, who decides if there is probable cause that a crime was committed and that accused committed it. The Warrant is also an order summoning one to Court.

Usually a Warrant is also accompanied by bail/bond. (The terms “bail” and “bond” are two terms for the same thing. Basically, the Magistrate requires one to post money to be released pending trial. Think of this as a form of security deposit. There can be other non-monetary terms imposed also, such as travel restrictions). If you come to Court as ordered, you don’t have to pay the bond. But if you fail to appear, you forfeit the money and the police arrest you anyway. Many people don’t have the money for the bond. These people can hire a bail bond company to put up the money for them. The fee for this service is 10% of the bond. (So, if bond is set at $5,000, one would pay the bail bonding company a non-refundable premium fee of $500, and then the bail bond company would agree to pay the $5,000 if the accused fails to return to Court as ordered). For most Misdemeanors, people get bail. However, sometimes, they do not – or the amount set is too high. When that happens, the accused remains in jail pending trial. (Note: If the Magistrate denies bail, then one can go before a full Judge and ask for bail. At this point, it is imperative to have an attorney to have the best odds of getting bail).

After release from jail pending trial, the next appearance is often an Arraignment. (Some jurisdictions do not require an Arraignment and other jurisdictions don’t require one if the accused has already retained an attorney). An Arraignment is simply a hearing where the Judge makes sure one understands the charges against him and that he knows he needs an attorney. (If one is truly poor, it would be best for him or her to request a Public Defender at this point).

After the Arraignment, a trial date will be set. In almost all cases, this is the actual trial. Each jurisdiction has different internal procedures, however. For example, some jurisdictions have Prosecutors for Misdemeanors and some do not. For those with Prosecutors, some will talk to people who don’t have attorneys, and others will not talk to anyone but attorneys. (Note: Standard criminal defense attorney advice is to recommend that no accused ever speak with law enforcement personnel without one’s own lawyer present. It avoids misunderstandings. The police officer is there to make an arrest; the Prosecutor is there to convict people of crimes. Anything a person says to the police or the Prosecutor can be used against him or her).

Most misdemeanors are litigated in the General District Court, which is the lower trial court. If one has an attorney, the attorney will perform “discovery” and learn the government’s theory of the case. (Note: In many jurisdictions, the Prosecutors are so busy they will not know the facts prior to the day of the trial on misdemeanors. They will first look at cases they prosecute the day of the trial. In other jurisdictions, the Prosecutors are better prepared and some will make the information on one’s case available to the defense attorney prior to trial. On a misdemeanor, the only discovery mandated by law is (1) disclosure of statements made by the accused to law enforcement, and (2) the accused’s own criminal record. Many people are surprised that an accused has no right to the police report!

At some point on or before the trial date, the Prosecutor and the defense attorney will discuss the case privately to see if there is room for compromise. This is called “plea bargaining.” Usually, there is room. If there is an agreement, it is called a “plea agreement.” The defense attorney and the accused will discuss the advantages and disadvantages of any plea agreement. The accused always has the right to accept or reject it. If the compromise is rejected, the case goes to trial, or the accused enters a guilty plea without any agreement and the attorneys try to persuade the Judge what the proper punishment should be.

At the trial, the accused as the right to testify – or not. Through his attorney, he can question witnesses in open court, cross examine the government’s witnesses, and present other evidence to the Judge. The accused can compel witnesses to come to Court and can force other people to hand over necessary documents to his defense (via the subpoena power of the Court).

When the accused wins at trial he is “acquitted.” He walks out of Court a free person and is relieved of obligation to the Court. If he loses, he will be sentenced (punished). Misdemeanors carry a maximum punishment of one year in jail and a $2,500 fine. The accused can either accept the punishment or can appeal and get a new trial in Circuit Court. This is called a de novo appeal. (De novo is Latin for “new”). At this second trial, unlike the first, a jury will decide the case unless both the Prosecutor and the accused agree to permit a single judge to decide the case. Going to trial without a lawyer in any Court is usually the mistake of one’s life. Going to trial in Circuit Court without a lawyer is worse than that. Criminal law and trial procedure are not intuitive, that is it is rare for one to go to trial on a criminal charge without the benefit of a lawyer.

This is the procedure for misdemeanor litigation in Virginia. Felony litigation and civil litigation are very different. As a result, it is important to have a lawyer who focuses his or her practice in criminal law.