Disclosure of your sentencing range is not your automatic right as a Virginia criminal defendant

Disclosure of your sentencing range is something you may want your Virginia criminal lawyer to do with your jury before it renders a verdict of innocent or guilty. The Virginia Court at best gives trial judges discretion to so inform jurors, but does not make that a right of defendants. As a Fairfax criminal lawyer, I know the double edged sword of telling the jury your sentencing range. That can be important at the jury selection stage if you have elected to have a jury sentencing proceeding in the event of a conviction, and if your attorney wants to gauge if any potential jury members will be inclined to recommend a harsher sentence merely because it is available, versus as a matter of following the juror’s oath. A Virginia trial judge should not be expected to accept such information being told the jury if the judge sees no legitimate reason for so informing the jury and instead sees the effort as one of pursuing possible jury nullification (where the jury acquits despite the trial evidence and governing law) or a hung jury (once again, related to juror nullification). See Walls v. Commonwealth of Virginia, 38 Va. App.
273 (2002) and Landers v. Commonwealth of Virginia, Record No. 1395-24-1 (Va. App. 2025) (unpublished).

If the jury is told that being a law enforcement officer (LEO) is the element of the crime of assault on a police officer, why can the jury not be told it is a felony offense?

Landers finds no abuse of discretion for his trial judge to have granted the prosecution’s motion in limine to bar disclosure to the jury — before determining innocence or guilt —  that his assault on a police officer charge is a felony, since the felony status (and attendant mandatory minimum incarceration) from such a conviction is not an element of the crime. At the same time, lingering in the jury’s mind might be why LEO status is an element of the crime. Because Walls and Landers give trial judges wide discretion on such informing the jury, at the very least, a Virginia criminal defense lawyer has the opportunity to argue to the judge to exercise such discretion to the favor of the defendant.

Judges do not want to assist a jury nullification effort

Jury nullification may be seen as a good or bad thing by members of the public depending on its purpose, for instance as a good thing to prevent a harsh mandatory minimum sentence for low level cocaine dealing, but as a bad thing if fueled by racism to the benefit of an assault or murder defendant who acted out of racism. Do not expect Virginia trial judges to be tolerant of your Virginia criminal defense lawyer’s disclosure of information or ideas to the jury that cannot be supported as being disclosed for any reason other than seeking jury nullification.

What should I do if I want disclosure of crucial information to my Virginia criminal jury?

Talk with your Virginia criminal lawyer about any information disclosure you want for your jury, including the extent to which the law and reasonable argument allow it. Do not wait until mid trial to do that. Your Virginia criminal attorney has an obligation both to fully defend you and to follow the governing law and the judge’s mandates for how the trial proceedings will go forward.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense. For your free in-person confidential consultation with Jon Katz about your court-pending prosecution alleging a Virginia felony, misdemeanor or DUI offense, contact us at 703-383-1100, info@KatzJustice.com and (text) 571-406-7268.