Evidence suppression motions cannot be denied their day in court at Virginia criminal preliminary hearings

Evidence suppression arguments are critical to Virginia preliminary hearings (which cover felony cases) and for all Virginia misdemeanor and felony trials. As a Virginia criminal lawyer, I had thought this was a given for preliminary hearings, but in the last few months, a Fairfax District Court judge and a judge from a neighboring county district court concluded that a Virginia criminal defendant is not entitled to an evidentiary suppression hearing. I write this article to provide legal citations and arguments to convince any Virginia district court judge that criminal defendants are entitled to argue to suppress evidence at preliminary hearings, including suppressing unlawful surveillance, initial police stops of suspects, criminal defendants’ statements, searches, detentions and arrests. The usual Constitutional provisions involved with suppression arguments are the Fourth, Fifth and Sixth Amendments to the United States Constitution.

What is a preliminary hearing?

A Virginia criminal preliminary hearing is a critical stage of defending a felony criminal case in District Court. On a preliminary hearing date, one of the following three things takes place: (1) a preliminary hearing proceeds (unless waived by the defendant), whereby the judge hears evidence and testimony and decides whether probable cause exists to believe that one or more of the charged felony(ies) took place and were committed by the defendant (and the prosecutor may indict the defendant even if probable cause is found to be absent); (2) the case settles, whether for a plea of guilty, no contest, or Alford or for a better result than that; or (3) the preliminary hearing date gets continued.

Why am I entitled for my Virginia criminal lawyer to argue to suppress unlawfully police-obtained evidence at my preliminary hearing?

The answer to the above question is found by reading, together Virginia Code §§ 19.2-183 and 19.2-266.2, as follows. First, Virginia criminal defendants’ “motions or objections seeking (i) suppression of evidence on the grounds such information was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia proscribing illegal searches and seizures and protecting rights against self-incrimination… shall be raised by motion or objection.” § 19.2-266.2(A).  “In a criminal proceeding in district court, any motion or objection as described in subsection A may be raised prior to or at such proceeding.” § 19.2-266.2(D). Notice that the foregoing language, reasonably read, applies to all evidentiary proceedings in Virginia district court, which includes preliminary hearings.

Further, at the preliminary “hearing the judge shall, in the presence of the accused, hear testimony presented for and against the accused in accordance with the rules of evidence applicable to criminal trials in this Commonwealth.” Virginia Code § 19.2-183(B). The foregoing language does not limit itself to the evidentiary rules of the Virginia Supreme Court rather than all evidentiary rules, which includes the evidentiary rules covered by the Constitution’s Fourth, Fifth and Sixth Amendments.

Of course Virginia criminal defendants are entitled to argue evidence suppression at preliminary hearings, when the preliminary hearing testimony of an unavailable prosecution witness can be used at trial

Virginia criminal appellate caselaw generally permits the prosecution at trial to present the preliminary hearing testimony (at least if given with the presence of a court reporter), in the event that the witness is unavailable for the Virginia Circuit Court trial. Seeing that the Constitution — including the evidence suppression provisions of the Bill of Rights to the Constitution — fully applies to Virginia criminal trials, the foregoing consideration alone makes it imperative for Virginia criminal defendants to be entitled to make suppression arguments at preliminary hearings.

When a judge admonishes that a Virginia preliminary hearing and suppression motion hearing is not a discovery hearing

When judges see huge Virginia criminal case dockets and even a backlog thereof, they sometimes consider how to make trials and hearings proceed quickly enough to not add to the backlog. However, shortchanging a Virginia criminal defendants’ right to a full and fair trial and preliminary hearing that challenges the prosecutor’s evidence and case is not the solution to that. A judge may not shut down a defensive line of questioning only on the maxim that preliminary hearings and suppression hearings are not discovery hearings, in that cross examination questions that are legitimate for such hearings often will also obtain discovery for the defense. Criminal defendants did not ask to be arrested, and should not be deprived of any procedural nor substantive rights in Virginia criminal court.

Virginia criminal lawyer Jonathan Katz pursues your best defense against DUI, felony and misdemeanor prosecutions. Jon Katz’s staff usually can schedule you for the same day or next day that you call for a free in-person confidential consultation about your court-pending case, at 703-383-1100.