A conviction cannot be obtained without a charging document that sufficiently puts the defendant on notice of the crime with which s/he is being accused. Raja v. Virginia, 40 Va.App. 710 (2003).

The Virginia charging document for misdemeanors in District Court will be a warrant of arrest (drafted by the judicial magistrate) or summons (drafted by a police officer), and typically an indictment or information (drafted by the prosecutor) in Circuit Court.

Sometimes the author will not be sufficiently precise nor accurate in drafting the charging document — or new information will come to the prosecutor’s attention that alerts the prosecutor to seek a change in the charging document — which will then leave the prosecutor to seek to fix the situation either by moving to amend the charging document or to moving to enter the case nolle prosequi/dismissed without prejudice, in order to file updated or corrected charging documents.

As with all other aspects of criminal defense, the criminal defense lawyer needs to respond like an eagle hawk to any effort by the prosecutor to amend the charging document. The applicable law boils down to barring the prosecutor from making a change in character rather than form to the charging document, unless the defense does not object, and to empowering the trial judge even to deny motions to make changes in form to the charging document.

The law governing amendment of indictments provides, in relevant part:

“If there be any defect in form in any indictment, presentment or information, or if there shall appear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment, presentment or information, at any time before the jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the nature or character of the offense charged.”

Va. Code § 19.2-231.

Similarly, for misdemeanor cases: “Upon the trial of a warrant, the court may, upon its own motion or upon the request either of the attorney for the prosecution or for the accused, amend the form of the warrant in any respect in which it appears to be defective.”  Va. Code Sect. 16.2-129.2.

While a change in date of the alleged crime will not always be a change in character rather than form  for the charging document, the above-two Virginia Code sections nevertheless give the trial judge the final decision whether to grant an amendment to the charging document. The criminal defense lawyer can appeal to the trial judge to exercise his or her sound discretion to deny such a charging document amendment.

One day a Virginia General District Court judge heard my argument that the prosecutor’s proposed amendment to the charging document would be a change in character rather than form, by responding that the governing District Court rules provide that leave to amend shall be liberally granted to District Court pleadings.  Va. S. Ct. R. 7A:9. However, Rule 7A:9, reasonably read, seems to apply more to civil case filings than criminal charging documents, the District Court rules must not be read in isolation, and the rule of lenity mandates applying the more restrictive language of Va. Code Sect. 16.2-129.2 over Rule 7A:9. Moreover, Rule 7A:9 still requires trial judges to consider the “ends of justice” before granting leave to amend a court pleading.

Pouncing on prosecutorial efforts to amend charging documents may not be as riveting as dramatic courtroom arguments that slice into the strength of the prosecutor’s case. However, criminal defendants want their liberty preserved, whether achieved by riveting presentations, technical arguments or both.