What are the steps in a criminal case? - Fairfax, Virginia

1. Typically the first step in a criminal case is the arrest. The police can make an arrest based on probable cause. There is no simple definition of probable cause, but it must be more than a mere suspicion or hunch. If the crime is a misdemeanor, the officer must witness the offense, or have a warrant to arrest the defendant. In the case of minor misdemeanors, officers are not required to arrest the defendant, and instead can issue a summons, similar to a traffic ticket. The defendant receiving the summons must sign it, which does not admit guilt, and appear in court on the date listed on the document.

2. If the defendant is arrested, the next step is to appear before the magistrate. The Magistrate is a government official with the power to make charging decisions based on information provided by police and citizen witnesses. The magistrate can also decide whether or not to set a bond for an defendant who has been arrested. If the magistrate sets a bond, it can be posted either with cash or with a corporate surety bond to the magistrate. A cash bond is returned at the end of the case if the defendant attends all court dates and does not violate any conditions of pretrial release. A corporate surety bond involves paying 10% of the bond amount to a bonding company, which is not returned to the defendant. If the magistrate does not set a bond either based on an defendant’s criminal history or current charges, it may be necessary to file a bond motion where an attorney would argue why the defendant should be released while the case is pending.

3. If the defendant is arrested, he or she is then taken to be booked at the police station. During booking the police will take pictures and fingerprints of the defendant, obtain basic information such as name, date of birth, and address, and search the defendant. If an defendant is not booked at the beginning of the process, they will be required to do so if they plead guilty or are found guilty of the charge later on.

4. The first court appearance in most cases is the arraignment. On this date, the defendant is advised of the charges against him or her and of his or her right to an attorney. The court will also set a trial date for misdemeanor charges, or a preliminary hearing date for felony charges. For minor traffic infractions, there is no arraignment, the first court appearance is the trial date.

5. For felony cases, the next court date is the preliminary hearing. At this hearing the government must prove that there was probable cause to arrest the defendant. The prosecutor will call the arresting officer and any victim or witness to testify regarding the incident, and the judge will make a decision. This hearing occurs at the General District Court level and the defendant has a right to be present, but not to present any evidence. In some cases, an attorney can negotiate with the Commonwealth Attorney at the preliminary hearing and reach a plea agreement whereby the defendant will agree to plead guilty to the same charge or a lesser charge in return for a dismissal of other charges or an agreement on sentence.

6. If the judge finds that there was probable cause at the preliminary hearing, the case will then be certified to the Grand Jury, which occurs at the Circuit Court level. The Grand Jury will hear the evidence and determine whether or not to return an indictment against the defendant. An indictment is just the formal charge against the defendant. This happens without the defendant present. The defendant must be present at term day to receive the indictment and set the case for trial.

7. At a trial the government must present enough evidence to convince the judge, beyond a reasonable doubt, that the defendant committed the crime charged. The defendant is also able to present evidence in his or her defense including witness testimony, documents, videos, and/or audio recordings. In a misdemeanor case, the trial is held in the General District Court, and the defendant’s only option is a bench trial where the decision is made only by a judge. In a felony case, the trial is in Circuit Court, and defendant has the right to request a jury trial. The government also has the right to request a jury trial in a felony case. If the defendant is found guilty, he or she is then sentenced by the judge or jury.

8. In a misdemeanor case, the defendant has 10 days from the date he or she is found guilty to appeal the case to Circuit Court to have a completely new trial. Every defendant has an absolute right to appeal a General District Court decision. In a Circuit Court case an appeal must be filed within 21 days and the Court of Appeals has the option to grant or deny the appeal based on briefs that must be filed by the defendant and the government. The defendant must be able to show that there was a legal error during the trial in Circuit Court to be granted an appeal. If the appellate court agrees that there was a legal error it can either dismiss the case or send it back to the Circuit Court for a new trial.

9. If a defendant is found not guilty or a charge is nolle prosequi’d (not prosecuted) by the Commonwealth Attorney, he or she can petition the court for the charge to be expunged after 12 months. The Commonwealth Attorney has the opportunity to object to the expungement, and the judge must determine whether or not expungement is appropriate. If the defendant is found guilty or enters a guilty plea, that charge cannot be expunged.

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