Beyond Reasonable Doubt
Search and Seizure
An affidavit is a sworn statement, subject to penalty or perjury, which generally is made out of court. Affidavits are sworn by police officers who seek search warrants or arrest warrants. The officers go in front of a judge or a magistrate and swear to the facts to establish probable cause and then the judge or the magistrate will determine whether or not probable cause exists and will issue the warrant based on that affidavit. Affidavits are frequently used in civil cases but are sometimes used in criminal cases as trial sworn statements that can be utilized if a party testifies differently at trial from what what appears in the affidavit.
If an affidavit is shown to be demonstrably false, the person who made the sworn statement is subject to being charged with perjury and facing criminal charges.
The appellant is the party, civil or criminal, who is appealing the verdict or determination of a trial court or an appeals court.
The appellant will initiate the appeal through either a petition to an appeals court or a notice of appeal to a higher trial court in Virginia. At this point, the appeal court will have the opportunity to review that decision and determine whether or not the appeal should be heard and if it determines that it will be heard, the case will proceed. The court will proceed with oral arguments and then will issue an opinion.
The appellee is the party against who the appeal is being sought. The appellee is the party who prevailed in the judgment of the trial courts or the lower appeals court.
If an appeal is sought, the appellee will have the opportunity to petition against or submit an opposition to the petition for appeal and state to the appeals court the reasons the appeal should not be granted. If the appeal is granted, the appellee will have the opportunity in the appeals court to argue in favor of the judgment of the lower court and the reasons why that judgment should be upheld.
In most states and in the federal system, arraignment is the proceeding before trial where a defendant is read the charges that he or she faces and given the opportunity to enter a plea to these charges. In Virginia, however, arraignment carries a slightly different meaning.
In Virginia, the proceeding is more of a formality and is more limited. In Virginia, an arraignment does not involve the entering of a plea – only the advisement of the defendant of his or her right to counsel and the potential for jail time if the defendant is facing incarceration.
The defendant will be given an opportunity to apply for appointment of counsel if they cannot afford an attorney. They will be given the opportunity to waive the right to counsel or to return after having hired a counsel. As a general matter, the court will set a date for trial (or for felonies, preliminary hearing) at the arraignment proceeding.
In many jurisdictions, particularly in Northern Virginia, if the defendant has already retained an attorney before the date of arraignment, that hearing can be waived and the defendant will be able to save a trip to court.
BAC stands for Blood Alcohol Concentration or Blood Alcohol Content. BAC is measured based on grams per 200 liters of alcohol present in an individual’s blood. This can be measured and determined through examination of the breath or through examination of blood.
Lawfully speaking, studies have shown a correlation between elevated Blood Alcohol Concentrations and intoxication from alcohol. Because of this, the Commonwealth of Virginia and all the other states have instituted a per se offense of driving while intoxicated if a suspect’s Blood Alcohol Concentration is 0.08 grams per 200 liters or higher.
This level creates what is known as a permissive influence of intoxication and this allows the court to make the determination that an individual’s Blood Alcohol Concentration at this level equates to the individual being intoxicated beyond what is permitted by law.
As a condition of being allowed to drive in Virginia, individuals have impliedly consented to submitting to a blood alcohol concentration test if they are lawfully arrested for driving while intoxicated.
What this means is if a driver is arrested for DUI and that arrest was valid under the laws of the Commonwealth and the United States, the defendant does not have a choice as to whether or not to submit to an examination of his or her blood alcohol content, and failing to do so will result in an additional civil penalty for refusal which will result in automatic suspension of a driver’s license for a period of one year.
A bench warrant, which is also called a “capias” in Virginia, is an order by a judge for the arrest of the defendant. This is most often utilized when a defendant is released on his own recognizance after the arrest but fails to appear at a scheduled court date. In this case, the judge will often issue an order commanding the sheriff to retrieve the defendant and place him or her in jail.
So if a defendant discovers he has a bench warrant issued against him, it’s essential that he contact an attorney, if he hasn’t done so already, in order to determine the best way for that to be executed with minimal impact on the defendant.
Anyone placed in jail wants to be released as quickly as possible and a skilled attorney will figure out the best course of action on behalf of the defendant in terms of getting a review of the incarceration as quickly as possible to potentially minimize the time the defendant spends locked up.
Beyond a reasonable doubt is the standard which is required for anyone to be convicted of a crime in the United States. It is a constitutional standard of due process. There is not necessarily a strict definition. Therefore courts have typically held that juries are not to be instructed on what exactly constitutes the standard for “beyond a reasonable doubt.” It really comes down to the common sense of the jurors. Even though it is the highest standard of proof in our system, it does not mean beyond all doubt.
It does not mean that the jurors, or the judge at a bench trial, need to exclude all possible hypotheses of how a defendant could potentially not be guilty. It means all reasonable hypothesis must be excluded and “reasonable” is not clearly defined. It is mostly left up to interpretation of the fact finder.
Cross examination occurs at trial when the witness is questioned by the party who did not call that witness. Cross examination is different from direct examination, because unlike in direct examination, the cross examining party is allowed to use leading questions, which are questions that suggest an answer to the person being questioned.
It is essential for a defense attorney to successfully cross examine witnesses for the prosecution, recognize potential holes in their testimonies, identify specific statements, and make apparent to a judge or jury the inconsistencies in the statements.
It is also essential to be aware of potential pitfalls that can come up on cross examination for the defendant if he or she chooses to exercise their right to testify in their own defense.
Any defendant facing a criminal charge has an absolute right to testify in their own defense and their attorney cannot stop them. They can advise them against it if it is in their best interest, but they cannot stop them from doing so.
So, if the defendant insists on testifying or if the attorney believes that it is in their best interest to testify, they have to prepare that defendant for the potential questions and the style of questions that they will face when being cross examined by the prosecutor.
There is really no general probation before judgment in Virginia but there are some types of cases that can be resolved by deferred disposition, which means that rather than entering a judgment of guilt, a defendant may have an opportunity to avoid conviction if they abide by certain conditions imposed by the court.
A situation in Virginia where this happens quite often is with first offense marijuana possession charges. The court often will determine that a defendant is eligible for a diversion program, and if a defendant enrolls in the program and completes it to the satisfaction of the court, then the charge would be dismissed and the defendant would not have a conviction on their record for that offense.
There are a few other similar statutes on the books, but in general, there is no overarching statute that would allow anything comparable to the Maryland “probation before judgment” authority.
Courts do have a lot of discretion, however, to delay the imposition of a judgment based on the circumstances of individual defendants. About two years ago, The Virginia Supreme Court, held that the act of rendering a judgment is strictly within the authority of the court. Even where the defendant has pled guilty to an offense, the court still has the authority, although not the requirement, to consider the individualized circumstances of the defendant and to consider potentially entering a judgment such as dismissal or a conviction of lesser charges that is not necessarily consistent with a guilty plea.
Although the court does hold the authority to make a decision for this type of disposition, it is quite uncommon. In fact, most attorneys will request this as a possibility only under rare circumstances when a defendant may be uniquely qualified for this type of disposition.
Deferred dispositions are not the norm in Virginia on most charges and it is essential for the defendant to retain an attorney who is aware of the unique circumstances that could qualify a deferred disposition and whether the defendant’s case is a likely possibility for this type of judgment to be achieved.
De novo is known as a “standard of review.” A higher court will look at the ruling of a lower court and determine if a review is in order. In this case, de novo is a very specific standard which means “from new” and when an appellate court or a higher trial court reviews something de novo, that means they are looking at it completely from scratch.
In most cases involving appeals, de novo is the standard used to review legal determinations by the trial court. For example, if a trial court made a determination about what is necessary for one of the elements of a crime to be committed and the defendant didn’t agree with that determination and appealed it, the Court of Appeals would look at the trial court’s determination with completely fresh eyes because it doesn’t involve a review of facts of the case, just a review of the law.
Legal determinations of the trial court will be reviewed de novo, but factual determinations that are made either by judge or jury in trial are reviewed by a much more stringent standard, which will depend on a lot of specifics.
Another example of de novo review in Virginia can happen when a case from the General District Court which is a court not of record, has been appealed to the Circuit Court which is of record. The review by the Circuit Court, which is guaranteed to any defendant in General District Court, will be completely de novo. This means that the Circuit Court will not just be reviewing the legal determinations of the General District Court but will also be reviewing the entire case from the beginning considering all factual as well as legal conclusions.
Discovery is the process whereby evidence is disclosed between the parties of the case. In the criminal context, discovery occurs between the Commonwealth of Virginia, the prosecution, and the defendant. The form that the discovery takes varies greatly based on the nature of the charge and in which jurisdiction the offense occurred.
Virginia, especially for misdemeanors, has a system that is essentially discovery by ambush. In most cases, a defense attorney on a misdemeanor case will not have any information on what the government’s evidence is until the day of trial. Some jurisdictions have a system where evidence is provided in advance. All that is required by rule to be disclosed, however, are statements made by the defendant on arrest, any criminal history of the defendant and exculpatory materials in the Commonwealth’s possession. The discovery process can get more involved in serious felony cases and the rules in Circuit Court, where these cases are tried, are much broader and more inclusive. It is important for the attorney to know what to look for in discovery, what to request, to understand the workings of the individual jurisdictions as far as what will be disclosed, and to be able to adapt and make arguments on why additional evidence may be required.
A felony is a crime where the maximum punishment is over one year of incarceration. Legally, the distinction between felony and misdemeanor is the difference in the potential duration of incarceration. However, the collateral consequences of a felony conviction can be much greater.
Even a felony conviction which doesn’t result in prison time will still disqualify people from many basic rights in society and the ability to hold certain jobs and live in certain places. A felony conviction will follow the defendant for the remainder of their life, so it is essential for an attorney to be aware of these consequences and to be knowledgeable in avenues of potentially negotiating a felony to the lesser offense of a misdemeanor. A skilled attorney will be aware of weaknesses in the case and in the standards of proof of the felony offense. When applicable, the attorney will identify when the elements of the felony offense could also be satisfied with the same elements for a lesser misdemeanor offense and work to gain the agreement on the lesser misdemeanor offense by the prosecution.
Forensic evidence is scientific evidence in the legal setting. Many people think of forensic evidence in situations such as ballistic evidence in murders or DNA evidence, but it is much broader than that. Any type of scientific evidence is forensic and it can come into play even in some misdemeanor cases such as driving while intoxicated. For example, every defendant who is arrested for driving while intoxicated has the right to records of the calibration of the breath testing machines used, and determination that the machines were properly administered and calibrated.
Defendants who are charged on the basis of blood samples have the right to additional tests to be conducted on those blood samples by an independent party, not affiliated with the government.
Examination of forensic evidence can be expensive so it is important for the defendant to have an attorney skilled in identifying how forensics can impact the case, evaluating the cost and benefits and making a determination if the costs of the experts is ultimately beneficial to the case.
The grand jury is a constitutional requirement for the prosecution of felony cases. However, it is also something of a formality in a practical sense.
At the grand jury, only the prosecution is able to present evidence. They can present any evidence they have regardless of whether or not it would be admissible at an actual trial, and they can present any witnesses they may have regardless of whether or not those witnesses would be allowed to testify at trial.
At the conclusion of the evidence, the grand jury will evaluate to determine whether probable cause exists to find that an offense was committed by the defendant. It is easier to meet this standard than the standard of “beyond a reasonable doubt” which is required to find the defendant guilty.
If the grand jury determines that probable cause exists, it will return what is known as a “true bill” or an “indictment”, which authorizes the case to be tried in the Circuit Court. The first appearance that the defendant will make in the Circuit Court comes after the indictment has been returned, at which time the defendant and their attorney, if one has been retained, will show up in what is known as “term day” to set a date for a trial and determine whether or not the trial will proceed by jury or at a bench trial.
In Virginia, one statutory right that the defendant does have is the right to a preliminary hearing in felony cases in the general district court. This, like the grand jury, is a hearing on probable cause. However, in the preliminary hearing, both sides are given the opportunity to present evidence to a judge and although as a practical matter the determination of probable cause is often rubber stamped, this still provides the defendant an opportunity to gain evidence or knowledge that could potentially be presented and used at trial.
An indictment is a document returned by a grand jury, which states that probable cause exists to charge an individual with a crime. The indictment is the formal initiation of prosecution in the circuit courts.
If no indictment is returned, then the case cannot proceed.
Typically, the indictment will come after the conducting of a preliminary hearing in general district court. However, in some cases, particularly those where the prosecutors were forced to dismiss a case without prejudice, the case will return to be re-prosecuted anew in circuit courts through a “direct indictment”.
In these circumstances, the defendant may be unaware that he or she is facing charges until presented with a summons or arrested by a bench warrant because of the indictment.
Miranda rights are based on the Supreme Court’s decision in Miranda v. Arizona from 1966. The Supreme Court in that case found that for a defendant’s right against self-incrimination, as protected by the Fifth Amendment, and right to counsel, as protected by the Fifth and Sixth Amendments, to be effective, the defendant must be advised of those rights.
Once a defendant is taken into custody, police are required to inform him or her of the right to remain silent, and the right to an attorney under the Sixth Amendment. If these warnings are not given, it is presumed that the defendant was not aware of them and therefore not able to waive those rights.
Any un-Mirandized evidence obtained after arrest, such as statements to police, would be subject to exclusion.
A misdemeanor is any crime where the maximum punishment is one year or less in jail. There are many common misdemeanors in Virginia. Some of the most common include driving while intoxicated as a first offense and first offense possession of marijuana. Many people may not realize that reckless driving is also a misdemeanor criminal offense in Virginia and if convicted, could potentially result in a jail sentence of up to one year.
A plea deal is an agreement between the defendant and the government to resolve the case on certain terms. Often, it will involve a defendant, whose case contains multiple charges, pleading guilty to one and having the rest dismissed or a defendant who is charged with an offense and pleads guilty to a lesser offense that carries a lesser punishment.
The plea deal agreement is contingent upon it being accepted by the judge, so until it is accepted, it is not a valid or enforceable agreement. Likewise, the determination of sentencing is strictly made by the court so even though the prosecutor can agree to recommend a specific sentence, the judge has the authority to accept or reject that recommendation. Therefore, it is essential the attorney informs the defendant of the potential risks as well as the benefits in accepting a plea deal.
Probable cause is a constitutional standard that must be present as a general matter, for a search or a seizure by the police. Generally, the requirement of probable cause goes hand-in-hand with the requirement of a warrant for a search, and in misdemeanor cases a seizure. To establish probable cause, the arresting or searching officer must be able to articulate facts and circumstances that would support the notion to a reasonable person that a crime is being committed. Probable cause does not necessarily mean that more likely than not, the person being searched or arrested has committed a crime. Probable cause should not have any bearing on the ultimate determination of guilt or innocence when determined by the fact finder.
In theory probable cause is subject to a lot of reviews. The officer making the arrest or the stop has to be able to articulate probable cause at the time of the arrest. If an arrest is made, the determination will be reviewed first by a magistrate at the facility where the arrestee is taken and then subsequently, by a judge at a preliminary hearing in felony cases, giving consideration to any motions the defense attorney may have filed. In misdemeanor cases in General District Court, defendants and their attorneys can also challenge the determination of probable cause, although that review will be made by the same judge who will ultimately determine the case on its merits, and it often takes place at the same time as trial.
If the case is a felony and the judge finds probable cause, that determination will again be subject to review by a grand jury, which would certify the case to Circuit Court by issuing an indictment or “true bill”. Practically speaking, very few cases are dismissed based on lack of probable cause at any of these points.
Some exceptions include incidents where the arresting officer has perhaps violated certain rights of the defendant, such as through an unlawful search or seizure, and these violations rendered evidence that could not be used due to the unlawful way in which the evidence was obtained. For an attorney to prevail in a probable cause hearing under these circumstances, the attorney needs to be aware of the potential violations and able to identify with clarity and specificity how and why it violates the constitution. The attorney must articulate why the manner in which the evidence was obtained was not harmless error and actually caused harm to the defendant and impacted the ability of the case to proceed.
If all of this can be accomplished, the case can potentially be defeated for lack of probable cause. Due to their complex nature, one circumstance where probable cause hearings often bear fruit is in cases involving driving while intoxicated. However, as is typical with misdemeanors, the probable cause determination and the factual determination are often made at the same time. The attorneys will typically attempt to separate the two arguments for the judge and will make the probable cause argument before the guilt or innocence determination, and this can result in a showing of lack of probable cause.
A protective order is a civil order of the court, which is designed to protect the safety of a person who has a reasonable fear for their own safety and well-being from an individual. The protective order is issued by the court in order to impose conditions on the person against whom the protective order is filed.
As a matter of course in Virginia, domestic assault cases result immediately in the issuance of an emergency protective order, which prohibits contact between the suspect and the complainant for a period of three days.
Between the issuance of the emergency protective order and its expiration, the party may go to the court and seek a preliminary protective order. A preliminary protective order imposes the conditions of the protective order, as determined reasonable by the court, for a period of 30 days, at which point the person who is determined to be in fear will have the opportunity to potentially retain counsel to investigate and determine whether it is worth pursuing a more permanent protective order.
A preliminary protective order is issued in what is known as an “ex parte” proceeding, where only the party seeking the protective order will be appearing in front of the court and making the arguments. Only the statements of that side and the evidence presented by that party are considered by the court.
For a full protective order to be issued, there will be a full hearing in the court with both sides given the opportunity to present evidence and testify. At this point, the court can reconsider the protective order or can issue it for a period of time up to two years.
The protective order is an important tool for prosecutors, particularly in domestic assault cases, because violation of the conditions of the protective order will lead to additional criminal charges for defendants. Often the consequences of violating a protective order can be as great, or even greater, than the consequences which can arise from the underlying criminal conviction, due to the impact the violation can have as it relates to security clearances, background checks and other security matters.
If a person is facing a protective order, it is important that his or her attorney advise on all of the conditions and ensure the client understands the conditions put upon them and advise on ways to avoid violating these conditions. The attorney must also evaluate the case and present a strong argument for the defendant in order to avoid having a permanent protective order put in place due to the severity of obligations that such an order imposes.
Reasonable suspicion is similar to probable cause. Reasonable suspicion is necessary for an officer to make a limited search of a suspect and make a brief restraint of his or her liberty. However, the standard for reasonable suspicion is much lower than for probable cause. In order to make a limited assessment, such as a traffic stop or a “stop and frisk” on the street, the officer needs only reasonable and articulate suspicion that some sort of wrongdoing may be about to occur.
Due to the low standard, it can be difficult to argue against reasonable suspicion. However, the low standard does not give officers the authority to conduct any manner of invasive searches. The officer must still be able to articulate the reasons for the search and the suspicion of danger must be based on the totality of the circumstances and the scope of the search must be reasonable in relation.
Remand is just a synonym for return. If an appellate court reviews the ruling and the judgment of lower courts and finds errors, many times, they will correct those errors and then remand the case back to the trial court for a new proceeding or they will instruct the trial court on how to correct those errors and then remand them for a new proceeding where those errors have been corrected.
Remand can also mean the returning of the defendant to the custody of the Commonwealth such as when a defendant is convicted and sentenced to jail.
The terms search and seizure are basically self-explanatory. The police are authorized to conduct reasonable searches. Seizures are arrests or temporary detentions by the police. It is important to note that search and seizures are required to be reasonable under the Fourth Amendment.
A person being searched maintains a reasonable expectation of privacy. For a search to occur, the police are required to have a warrant authorized by a neutral party such as a judge or magistrate. The search is only authorized for very specific items related to probable cause of an offense.
However, there are exceptions to this rule. There may be exigent circumstances where searches may be permitted without a warrant, however, the attorney has to be aware of these circumstances and must account for them during any hearings on probable cause or on guilt or innocence.
Likewise a seizure, strictly speaking must be based on probable cause as well. However, the warrant requirement is not as stringent for arrest – any felony arrest can be carried out without a warrant unless it occurs in the home of the defendant. Most misdemeanor seizures require a warrant but there are exceptions, such as driving while intoxicated and certain theft crimes. However, the seizures must still be based on probable cause.
Voir dire is a term that basically means to tell the truth. It is the process whereby the parties are able to ask questions of potential jurors in a criminal or civil case to expose their views on things that may not be apparent just from the limited information that the parties initially have. One of the most essential elements to a successful criminal defense is carefully selecting jurors who will be open-minded to the defendant’s case.
So during voir dire, the attorneys will take advantage of this process to increase the chances of identifying potential prejudices and red flags in jurors to make the best determination on the individuals who they want to sit on the panel and those they would rather not.
The process of voir dire is also utilized in the examination of expert witnesses, intending to testify for either side, to determine if they are qualified to testify on the subject for which they have been retained. Although this arises most often in the civil context, it is also a process utilized in criminal cases as well.
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